University of Calgary PRISM: University of Calgary's Digital Repository

University of Calgary Press University of Calgary Press Open Access Books

2014 A historical and legal study of sovereignty in the Canadian north : terrestrial sovereignty, 1870–1939

Smith, Gordon W.

University of Calgary Press

"A historical and legal study of sovereignty in the Canadian north : terrestrial sovereignty, 1870–1939", Gordon W. Smith; edited by P. Whitney Lackenbauer. University of Calgary Press, Calgary, Alberta, 2014 http://hdl.handle.net/1880/50251 book http://creativecommons.org/licenses/by-nc-nd/4.0/ Attribution Non-Commercial No Derivatives 4.0 International Downloaded from PRISM: https://prism.ucalgary.ca A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH: TERRESTRIAL SOVEREIGNTY, 1870–1939 By Gordon W. Smith, Edited by P. Whitney Lackenbauer

ISBN 978-1-55238-774-0

THIS BOOK IS AN OPEN ACCESS E-BOOK. It is an electronic version of a book that can be purchased in physical form through any bookseller or on-line retailer, or from our distributors. Please support this open access publication by requesting that your university purchase a print copy of this book, or by purchasing a copy yourself. If you have any questions, please contact us at ucpress@ ucalgary.ca

Cover Art: The artwork on the cover of this book is not open access and falls under traditional copyright provisions; it cannot be reproduced in any way without written permission of the artists and their agents. The cover can be displayed as a complete cover image for the purposes of publicizing this work, but the artwork cannot be extracted from the context of the cover of this specificwork without breaching the artist’s copyright.

COPYRIGHT NOTICE: This open-access work is published under a Creative Commons licence. This means that you are free to copy, distribute, display or perform the work as long as you clearly attribute the work to its authors and publisher, that you do not use this work for any commercial gain in any form, and that you in no way alter, transform, or build on the work outside of its use in normal academic scholarship without our express permission. If you want to reuse or distribute the work, you must inform its new audience of the licence terms of this work. For more information, see details of the Creative Commons licence at: http://creativecommons.org/licenses/by-nc-nd/3.0/

UNDER THE CREATIVE UNDER THE CREATIVE COMMONS LICENCE YOU COMMONS LICENCE YOU MAY: MAY NOT:

• read and store this document • gain financially from the work in any way; free of charge; • sell the work or seek monies in relation to the distribution • distribute it for personal use of the work; free of charge; • use the work in any commercial activity of any kind; • print sections of the work for • profit a third party indirectly via use or distribution of the work; personal use; • distribute in or through a commercial body (with the exception • read or perform parts of the of academic usage within educational institutions such as work in a context where no schools and universities); financial transactions take • reproduce, distribute, or store the cover image outside of its place. function as a cover of this work; • alter or build on the work outside of normal academic scholarship.

Acknowledgement: We acknowledge the wording around open access used by Australian publisher, re.press, and thank them for giving us permission to adapt their wording to our policy http://www.re-press.org 5 71 The Alaska Boundary Disput e

The Alaska boundary controversy had its origins in complications associated with the period of Russian dominion in Alaska. While explorers from western Europe were moving across the vast expanses of North America and up its Pacific coast towards the northwestern extremity of the continent, Russian adventurers were approaching the same region from the opposite direction, and they got there well in advance of their rivals. In 1639, only about sixty years after the Stroganovs and Yermak the Cossack started the great march from Muscovy eastward across Siberia, a small party under Andrei Kopilov is said to have reached the waters of the Pacific and founded the post of Okhotsk.1 The Cossack Simeon Dezhnev in 1648 sailed a vessel around the northeastern extremity of Siberia from the Kolyma River to south of the Anadyr, according to records discovered nearly one hundred years after the event is supposed to have taken place. He thus proved that Asia did not join North America in that region.2 There was desultory Russian activity around the Sea of Okhotsk and in Kamchatka Peninsula during the following years, but the next major advance came with the two great voyages of Vitus Bering. Acting on instructions given by Peter the Great just before his death in 1725, this Danish captain, with his lieutenant Alexei Chirkov, sailed from Kamchatka in 1728 and followed the Siberian coast through Bering Strait, reaching 67° 18' N latitude before turning back. In 1741, after years of delay, they set out from Kamchatka again. Although their two ships became separated, they both succeeded in reaching and cruising along the southern coast of Alaska and the Aleutian Islands, thus accomplishing the modern discovery of North America from the Asiatic side.3 After Bering’s second voyage, Russian explorers and traders sailed from Okhotsk and Kam- chatka to Alaskan waters in increasing numbers, and they gradually extended their activities along the Aleutian chain and to the mainland.4 Among the key events were the establishment of the first permanent Russian post at Three Saints Bay on Kodiak Island by Gregory Shelikhov in 1784, Gerassim Pribilov’s discovery of the Pribilov Islands in 1786, and Alexander Baranov’s establish- ment of a new headquarters, Mikhailovsk (later Novo Archangelsk), on the island of Sitka in 1799. The Russians were primarily interested in furs, especially those of the sea otter; in pursuit of this trade, they not only subdued the indigenous residents with much brutality but also fell into serious quarrels among themselves. They had also to withstand an increasing challenge from foreign rivals, notably British, Spanish, French, and American. In the latter part of the eighteenth century, Cook, Clarke, Portlock and Dixon, Meares, Vancouver, Pérez, Heceta, Quadra, Martinez, Haro, Fidal- go, Malaspina, Caamaño, La Pérouse, Marchand, and others were active in Alaskan waters and interested in the region.5 To eliminate inter- Fort Ross at Bodega Bay on the California necine strife among themselves, to combat the coast, this marking approximately the south- intrusions of foreign interlopers, and to main- ern limit of Russian enterprise in the region. tain better control and management of the Primarily to check the “secret and illicit traffic” fur trade, several leading Russian companies of foreigners, Emperor Alexander I issued a took the initiative and in 1798 consolidated sweeping ukase on 16 September 1821, which 72 into a single organization. On 8 July 1799, an purported to grant Russian subjects the exclu- imperial ukase issued by Emperor Paul I con- sive right to the “pursuits of commerce, whal- firmed the consolidation and granted the new ing, and fishery, and of all other industry on all organization the title “The Russian American islands, ports, and gulfs including the whole Company.” of the northwest coast of America, beginning The ukase bestowed upon the Russian from Behring’s Strait to the 51° of northern American Company a monopoly charter for latitude,” and also the Aleutian Islands and a period of twenty years over all enterprises, Kurile and other islands off the Siberian coast, including hunting, trading, settlement, and in- from Bering Strait to Urup Island in the Ku- dustry, on the coast of America north of 55° N riles at 45° 50'. The ukase also prohibited all latitude and the chain of islands extending foreign vessels from landing on all these coasts across the northern Pacific and southwards to and islands, and also from approaching them Japan. The company could make new discov- within one hundred “Italian miles,” on pain of eries not only north of 55° but south as well, confiscation.9 Nine days afterwards, the Tsar and it could claim and occupy the lands discov- issued a second charter to the Russian Amer- ered as Russian possessions if they were not al- ican Company, renewing the monopoly privil- ready the property of some other nation. It also eges it had been granted in 1799 for a further had judicial, military, and administrative au- period of twenty years. The area subject to the thority in these regions.6 As the British pointed monopoly would be governed by the ukase of out in the Fur Seals Arbitration, however, and 1821 rather than by that of 1799, and thus it as had been recognized in the United States at would extend down the Pacific coast of North an earlier time, the ukase was intended pri- America to 51° (i.e., the northern tip of Van- marily to regulate the activities of Russian sub- couver Island) rather than just to 55°.10 jects, rather than to interfere with the rights of Both the British and American govern- foreigners.7 ments protested strongly against these meas- The ukase did eliminate most of the quar- ures as quickly as possible after receiving of- reling among the Russian traders themselves, ficial notification of them. Although efforts to but it had little effect upon foreign traders coordinate their protests fell through because (mainly British and American) who came to of the evident conflict between their own Alaskan waters. As a result, officials of the Rus- claims, their separate negotiations soon caused sian American Company complained to their the Russian government to moderate its stand. government, which endeavoured – without In a letter to Russian Ambassador Pierre de success – to support their cause through the Poletica on 25 February 1822, American Sec- medium of diplomatic protests.8 In the mean- retary of State John Quincy Adams expressed time, the Russian company tried to extend its his president’s concern about the terms of the own sphere of activity, and in 1812 it established ukase and inquired whether he was “authorized

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH to give explanations of the grounds of right, Christopher Lieven on 18 January 1822 “to upon principles generally recognized by the make such provisional protest against the en- laws and usages of nations, which can warrant actments of the said Ukase as may fully serve to the claims and regulations contained in it.”11 save the rights of His Majesty’s Crown.” Specif- De Poletica’s “explanations,” given in a letter of ically, he said that Great Britain reserved all her 28 February,12 were firmly rejected by Adams rights regarding Russian claims to exclusive 13 in a further letter of 30 March, and lengthy sovereignty over the land and exclusive right 73 negotiations followed which involved mainly of navigation in the water, as described in the a Russian retreat from their original position. ukase, and could not admit that non-Russian While this dispute was in progress, and part- trade therein was illicit or that Russia could ly because of it, President James Monroe pro- legally prevent foreign ships from approaching claimed his famous “doctrine” to the effect that within one hundred Italian miles of the coast.19 the American continents were “henceforth not The Russian claims, and also those of the to be considered as subjects for future coloniz- Americans in the same region, greatly con- ation by any European powers” in his message cerned the Hudson’s Bay Company (HBC), to Congress on 2 December 1823.14 When the which had joined with the Nor’Westers in the two powers agreed upon a settlement, as em- territories west of the Rocky Mountains.20 Later bodied in the treaty of 17 April 1824, Russia in 1821, the new coalition received Imperial au- abandoned her extreme claims. It specified that thorization to monopolize trade in these same the entire Pacific Ocean should be open for territories.21 Deputy Governor J. H. Pelly wrote navigation and fishing by the citizens of both urgently to Londonderry on 27 March 1822 to nations. The treaty also established the par- put the company’s case before him,22 and in this allel of 54° 40' N latitude as the dividing line and later communiqués,23 he included much between Russian and American settlements on supporting evidence which, although it was the northwestern coast of North America and not always strictly accurate, the British govern- adjacent islands.15 ment relied upon extensively in developing its The British government received official own case. word of the ukase on 12 November 1821 in a The Duke of Wellington, who had been letter from Russian Ambassador Baron de appointed to represent Great Britain in con- Nicolay to Foreign Secretary Lord London- ferences at Vienna and Verona following the derry (Viscount Castlereagh).16 Londonderry suicide of Londonderry in August 1822,24 was was advised by King’s Advocate C. Robinson given verbal assurances by Count Lieven that to declare Britain’s intention of upholding or- the Russian emperor “did not propose to carry dinary principles of international law and pro- into execution the Ukase in its extended sense” testing any infringement of British rights.17 and that Russian ships “had been directed to Ambassador Sir Charles Bagot in St. Peters- cruise at the shortest possible distance from burg informed him that the main purpose of the shore.”25 The new Foreign Secretary, George the ukase was to prevent the “commerce inter- Canning, derived similar impressions from a lope” of American adventurers and that the talk with Count Lieven, and he was confident justification for the measure was supposed to that, so far as their extreme claims at sea were be Article 12 of the Treaty of Utrecht.18 He then concerned, the Russian government was “pre- wrote to the new Russian ambassador Count pared entirely to waive their pretensions.”26

5 | The Alaska Boundary Dispute Wellington was far from satisfied, however, themselves of the 55th degree, or preferably with verbal assurances that left the ukase itself “the southern point of the archipelago of the in being. In a note to Russian Foreign Secretary Prince of Wales and the Observatory Inlet,” as Count Karl Nesselrode on 17 October, he ex- the most northerly limit they could concede.34 pressed strong objections to the claims of exclu- In preliminary conversations with Nesselrode sive sovereignty, as set forth in the ukase, over and Poletica, Bagot indicated that although 27 74 both land and sea. When Nesselrode replied Britain had always claimed up to 59° N lati- in rather conciliatory fashion, offering to ne- tude, she would accept a line at 57°, or perhaps gotiate boundaries but in effect reasserting the at Cross Sound at 57-½°, with a meridian line terms of the ukase,28 Wellington countered by drawn north from Lynn Canal at about 135° W restating his objections in a stiff note to Count longitude.35 Poletica, who had been designated Lieven. He also wrote, in blunt language more to carry on negotiations for Russia, replied with characteristic of the general than the diplomat: suggestions that his government would like to fix the line of latitude at 55° or 54°.36 I must inform you that I cannot In the formal talks that followed, Bagot consent, on the part of my Govern- modified the British proposals on three occa- ment, to found on that paper the sions. He found the Russians adamant, at least negotiations for the settlement of so far as the southern boundary was concerned. the question which has arisen be- On the other hand, they were less worried about tween the two Governments on this the eastern boundary, and from the start they subject…. I think, therefore, that the were willing to accept a line that would leave best mode of proceeding would be the entire Mackenzie River in British posses- that you should state your readiness sion.37 Bagot’s three modifications were: to negotiate upon the whole subject, without restating the objectionable principle of the Ukase, which we (1) a line through Chatham Strait cannot admit.29 and Lynn Canal, northwest to the 140th meridian and along that One day later, Wellington sent word to Canning meridian to the Arctic Ocean; that he had won his point and that the Rus- (2) a line through Sumner Strait sian emperor now desired to negotiate “upon north of Prince of Wales Island to the whole question of the Emperor’s claims in the mainland coast, then north- 30 North America.” Russia was willing to aban- west following the sinuosities don completely her “extravagant assumption of of this coast at a distance of ten 31 maritime jurisdiction,” but Sir Charles Bagot, marine leagues from shore as far the British Ambassador to Russia, who had as the 140th meridian, and then been given the responsibility of conducting ne- along this meridian to the Arctic 32 gotiations, had much greater difficulty in -ar Ocean; and ranging an agreeable disposition of the claims to land. Canning had directed him to suggest (3) a line south and east of Prince the 57° parallel as the dividing line,33 where- of Wales Island through Dixon as the Russian officials had spoken among Entrance and Clarence Strait to

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Sumner Strait, and then as in (2) Apart from being obliged to bow to Rus- above.38 sian wishes regarding the southern boundary and the creation of the lisière, the British could The Russians proposed a line running from the point with satisfaction to the acceptance of southern extremity of Prince of Wales Island to much of what they wanted in the arrangement and up Portland Canal, along the mountains that was made. The treaty recognized their paralleling the coast to the 139th meridian, and freedom to navigate, fish, and trade through- 75 thence along this meridian as far as the Arctic out the Pacific Ocean, thus removing the most Ocean.39 Feeling that he had already conceded objectionable feature of the 1821 ukase. It lim- more than he was authorized to do, Bagot sus- ited the breadth of the lisière to a maximum of pended negotiations for the time being. On 29 ten marine leagues; it conceded their right to March 1824, he wrote to Canning saying that navigate “for ever” the rivers flowing through he had “entirely failed” to get an acceptable the lisière; and it moved the northwestern agreement from the Russians.40 boundary westward to the 141st meridian. It After receiving advice from the HBC,41 also omitted, at British insistence, an article Canning decided that it would be wise to in a Russian “counterdraft” of 21 August 1824, bring matters to a conclusion largely on Rus- which seemed to imply that freedom of naviga- sian terms, although with some “qualifica- tion in Bering Strait was being conceded “as a tions.” These qualifications were mainly (1) a boon from Russia.”45 more definite description of the Russian strip Article 1, regarding freedom of navigation, of territory on the mainland, with its width to fishing, and trading throughout the Pacific, and be limited to a maximum of ten leagues; (2) a Article 2, regarding the requirement of per- more westerly meridian of longitude for the mission to land at each other’s establishments, boundary in the northwest; (3) free use of all were almost identical with the same articles in rivers flowing through the Russian strip and the Russian-American treaty of the preceding of all Russian waters; and (4) trade advantages year. The important provisions for the bound- not inferior to those granted to any other na- ary line were in Articles 3 and 4: tion.42 With new instructions along these lines to guide him, Bagot tried once more. The nego- tiations broke down on his insistence that Brit- 3. The line of demarcation between ain should have a perpetual right of access to the possessions of the High Con- the part of the Novo Archangelsk and to navi- tracting Parties, upon the coast gation and trade along the coast of the strip of the continent, and the islands or lisière, as well as a temporary right, which of America to the north-west, was to be reciprocal, to visit all other parts of shall be drawn in the manner the northwestern coast.43 Shortly afterwards, following: Bagot was transferred to a different post, and Commencing from the southern- Canning sent his cousin Stratford Canning to most point of the island called St. Petersburg as special emissary to finalize Prince of Wales Island, which 44 an agreement. With Bagot’s last demands put point lies in the parallel of 54 de- aside, a treaty was framed without great diffi- grees 40 minutes, north latitude, culty and signed on 28 February 1825.

5 | The Alaska Boundary Dispute and between the 131st and 133rd line of coast which is to belong to degree of west longitude (merid- Russia, as above mentioned, shall ian of Greenwich), the said line be formed by a line parallel to the shall ascend to the north along windings of the coast and which the channel called Portland shall never exceed the distance of Channel, as far as the point of the 10 marine leagues therefrom.46 76 continent where it strikes the 56th degree of north latitude; from What the treaties of 1824 and 1825 meant to this last-mentioned point the line Great Britain, so far as boundary problems of demarcation shall follow the were concerned, was that henceforth any such summit of the mountains situated problems north of 54° 40' would be with Rus- parallel to the coast as far as the sia, and any south of 54° 40' would be with point of intersection of the 141st the United States. In this connection, it is degree of west longitude (of the necessary to recall that in earlier times two same meridian); and, finally, from other nations, France and Spain, had shown the said point of intersection, the developing interest in this region, but by now said meridian line of the 141st their pretensions had been eliminated. During degree, in its prolongations far as the eighteenth century, French explorers and the Frozen Ocean, shall form the fur traders led by the Vérendryes had moved limit between the Russian and westward across the continent and had almost British possessions on the contin- reached the Rocky Mountains, but any further ent of America to the north-west. action France might have taken on the other side of the Rockies became an impossibility af- 4. With reference to the line of de- ter the Seven Years War and the Peace of Paris marcation laid down in the pre- in 1763. Henceforth, the possibility of French ceding Article it is understood: involvement was limited to whatever fishing 1st. That the island called Prince of and trading interests might develop as a result Wales Island shall belong wholly of sea voyages, such as those of La Pérouse and to Russia. Marchand. Spain had been the first European state to sail in the waters west of North Amer- 2nd. That whenever the summit of the ica, and she had gradually extended her activ- mountains which extend in a dir- ities and aspirations northward by both land ection parallel to the coast, from and sea, but the treaty of 22 February 1819 with the 56th degree of north latitude the United States placed the northern bound- to the point of intersection of the ary of her Pacific coast territories along the 141st degree of north latitude to parallel of 42°.47 Her position respecting more the point of intersection of the northerly regions thus became comparable to 141st degree of west longitude, that of France. shall prove to be at the distance For Great Britain and the United States, of more than 10 marine leagues the question of boundaries west of the Rocky from the Ocean, the limit between Mountains involved the whole of the so-called the British possessions and the “Oregon country,” from the northern limit of

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Spanish territory to the southern limit of Rus- in this part of the continent were henceforth to sian territory, that is, as these limits came to be be over the Alaskan Panhandle, first with Rus- determined, from 42° to approximately 54° 40'. sia and then, after 1867, with the United States. By the convention on 20 October 1818, the 49th Disagreement with Russia was not long in parallel was established as the dividing line be- coming after the treaty of 1825 had been signed tween British and American territories from – not so much over the boundary, however, as the Lake of the Woods to the Rocky Moun- over the interpretation of the treaty and what 77 tains. Since agreement could not be reached it implied for navigation and trade. The HBC on the territories west of the mountains, it was began to construct a chain of posts along the stipulated that these territories should be open coast north of the Columbia River, and in 1834 for joint occupation for a period of ten years: it sent Chief Trader Peter Skene Ogden in the brig Dryad to build a fort on the Stikine Riv- It is agreed, that any country er. Although the fort was to be constructed on that may be claimed by either party British territory, up the river and beyond the on the northwest coast of America, point where it flowed into the Russian lisière, westward of the Stony Mountains, Lieutenant D. F. Zarembo of the armed ship shall, together with its harbours, Chichagov refused, with threat of force, to let bays, and creeks, and the navigation Ogden proceed. Ogden was obliged to retreat of all rivers within the same, be free without carrying out his assignment, and the and open, for the term of ten years HBC appealed to the British government for from the date of the signature of the help, claiming damages of more than £22,000. present convention, to the vessels, The company charged specifically that the Rus- citizens, and subjects of the two sians had violated three provisions of the 1825 Powers.48 treaty: Article 6 guaranteeing British subjects freedom of navigation in the rivers crossing When it became apparent that no definitive the lisière, Article 7 guaranteeing for ten years settlement could be made before the ten years freedom to fish in the coastal waters of the had expired, another convention was signed on same, and Article 11 renouncing use of force.51 6 August 1827, extending the provisions of the The British government pressed these charges above-quoted third article indefinitely, but with upon the Russian government, which initially the prevision that either party could terminate admitted their validity but then tried ingen- the arrangement after one year’s notice.49 The iously, although with lessening confidence, to Oregon Treaty of 15 June 1846 fixed the re- avoid admitting the claim for damages.52 Final- minder of the boundary by extending it along ly, through direct negotiations between the the 49th parallel from the Rocky Mountains HBC and the Russian American Company in to the middle of the channel separating the St. Petersburg and Hamburg, and doubtless to continent from Vancouver Island, and thence the great relief of the Russian government, the through the middle of this channel to the Pacif- two companies themselves were able to make ic Ocean, so as to leave all of the island as Brit- a settlement. By an agreement signed at Ham- ish territory.50 Apart from the dispute over San burg on 6 February 1839, the Russian American Juan Island, which was settled by arbitration in Company leased to the HBC the coastal strip 1872, British and Canadian boundary disputes north to Cape Spencer for ten years beginning

5 | The Alaska Boundary Dispute Figure 5-1: Russian American in 1860. Excerpt from the “Map of North America. Showing its Political Divisions, and Recent Discoveries in the Polar 78 Regions,” in Mitchell’s New General Atlas, Containing Maps Of The Various Countries Of The World, Plans Of Cities, Etc. (New York: S. Augustus Mitchell, Jr., 1860).

on 1 June 1840, in return for an annual rent of Through arrangements initiated before 2,000 otter skins plus the guaranteed sale of the Crimean War broke out in 1853, the two various commodities including food and more companies maintained an agreement that their otter skins. The HBC also relinquished its claim possessions on the northwest coast of Amer- to damages for the Dryad affair.53 The lease was ica should be neutralized. Both the British and renewed or extended in 1849, 1858, 1862, 1865, Russian governments approved the agreement, and 1866 for varying lengths of time, the last although the British refused to extend it to the to terminate on 31 May 1867.54 It was thus still adjacent high seas and joined their French al- in existence when the sale of Alaska was made. lies in attacks upon Russian establishments on One of the interesting sidelights of the Dryad the Kuriles and the Siberian coast.56 episode, of considerable consequence for the The sale of Alaska to the United States in later events, was that both British and Russian 1867 brought to an end the proximity of British officials in their negotiations not only accepted and Russian territory in North America and the existence of the lisière but also seemed to meant that henceforth British and Canadian agree that its breadth along the Stikine should dealings in this part of the continent would be be ten marine leagues.55 with the United States. In 1862, the HBC had

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH informed the Russian American Company that sufferance,”62 and although steps were taken it did not plan to renew the lease arrangement;57 to renew the charter in 1866, these were nul- although the lease was renewed for a period of lified by the cession.63 Also nullified was the two years, every indication suggested that fur- still-existing lease of the lisière by the HBC, ther renewals were doubtful.58 For this reason along with new plans by the British company and various economic, political, and strategic for yet another extension of the lease.64 Never- considerations, the Russian government began theless, HBC officials assumed that the United 79 to give increasing thought to disposing of States would be bound by the Anglo-Russian its distant colony. The idea of selling it to the treaty of 1825 as Russia’s successor, and when United States, far from being new, had been their steamship Otter was deterred by Amer- under contemplation for at least several years; ican regulations and dues from ascending the nevertheless the actual negotiations for the sale Stikine River in 1867, they protested to the Brit- took place rather quickly early in 1867.59 ish government that the Americans were vio- At four o’clock in the morning on 30 lating the treaty. They were informed that by March 1867 at Washington, DC, Secretary of the terms of the cession the United States was State Seward and Russian Ambassador Baron bound only by the boundary provisions of the de Stoeckel signed the document providing for 1825 treaty and that Russian concessions in- the cession of Alaska to the United States in re- cluding the right of navigation were no longer turn for $7,200,000 in gold.60 Ratifications were in effect.65 exchanged on 20 June, and the formal cere- Apart from the Otter affair and a few other mony of the transfer took place at Sitka (Novo events, such as the expedition of Captain Ray- Archangelsk) on 18 October.61 Article 1 of the mond in 1869 to remove the HBC from its post treaty specified that the land being transferred at Fort Yukon, the change of ownership in Al- comprised “all the territory and dominion now aska caused little difficulty over the boundary possessed by his said [Russian] Majesty on for several years. The transfer of Rupert’s Land the continent of America and in the adjacent and the North-Western Territory to Canada, islands” and that its eastern limit should be along with the extension of British Columbia’s “the line of demarcation between the Russian northern boundary to the 60th parallel, elim- and the British possessions in North America, inated the HBC as a political factor in the area as established by the convention between Rus- almost as thoroughly as the sale of Alaska had sia and Great Britain, of February 28–16, 1825, eliminated the Russian American Company. and described in Articles III and IV of said There was little American interest in the newly convention.” The treaty did not specifically re- acquired territory, and less American immi- tain any other existing arrangements between gration into it, while the majority of Russians Great Britain and Russia, and Article 6 stated departed. As time went on, however, a succes- that the cession was to be “free and unencum- sion of events focused attention upon bound- bered by any reservations, privileges, franchis- ary problems once more. es, grants, or possessions, by any associated On 11 July 1872, Lieutenant-Governor Jo- companies, whether corporate or incorporate, seph W. Trutch of British Columbia forwarded Russian or any other.” After the expiration of a copy of an address from his legislature to its third charter on 1 January 1862, the Rus- the Dominion government in Ottawa asking sian American Company had existed only “on that, in view of the recent mineral discoveries

5 | The Alaska Boundary Dispute in the northern part of the province and the This point of view was not to prevail. In a undefined state of the boundary with Alaska, conversation with Ambassador Thornton on 23 steps be taken to have this boundary proper- September 1875, US Secretary of State Hamil- ly marked out.66 Under instructions from the ton Fish informed him of reports from Sitka British government, Ambassador Sir Edward to the effect that a party of British subjects had Thornton broached the idea of a joint commis- settled on the Stikine below the Canadian cus- 80 sion in Washington, where it was favourably tom house and that both the settlement and received, but the proposal fell through because custom house were within ten marine leagues of the unwillingness of Congress to grant the of the coast and thus on American territory. necessary funds for the survey. American of- Thornton replied that the occurrence showed ficials had suggested that it might be sufficient the wisdom of the British recommendation to locate only particular points, such as those that the boundary should be determined with- where the boundary line crossed some of the out delay, and he suggested that both countries important rivers including the Stikine, but Sec- send officers to settle the problem.72 Trouble retary of State Hamilton Fish feared, rightly, also arose over the trading post of a Canadian that even this would be considered too expen- named Buck Choquette, which was located on sive by Congress.67 the Stikine about two miles above the custom In January 1874, the British Columbia house, left isolated in 1876 when the Canadian legislature presented another address to the authorities moved it ninety miles upstream. Lieutenant-Governor requesting a delimita- Claiming that his post was clearly within Al- tion of the boundary, and again Trutch sent it aska, American officials ordered Choquette to to Ottawa, with no more significant result than pay duty on his goods or remove them by spring the first time.68 Acting on its own, however, the 1877. Choquette insisted that his post was in Canadian government in November 1873 ap- British Columbia and held his position when pointed Captain Donald Roderick Cameron, the American customs official at Sitka, hearing who was not only Her Majesty’s North Amer- that the Canadian government had ordered a ican Boundary Commissioner but also the survey of the Stikine, temporarily suspended son-in-law of Charles Tupper, to report on the any attempt at enforcement of his decree.73 cost and time that a joint commission would More serious was the case of Peter “Brick- require to fix the boundary line.69 Cameron’s top” Martin, who in 1876 was sentenced to report was not submitted until February 1875, fifteen months’ imprisonment on two convic- and since his estimate of cost ranged from tions at Laketon in the Cassiar mining district $425,000 to $2,230,000 and of time from two of British Columbia. Then, after momentarily to seven years, it was too vague to be of much escaping from and wounding his escort while help.70 John Stoughton Dennis, the Surveyor being taken out via the Stikine River to the General of Canada, had also submitted a report Victoria jail, he was convicted of these new of- a year earlier which accepted the American fences at Victoria and sentenced to an addition- suggestion that only particular points along the al twenty-one months. Secretary of State Fish boundary needed to be fixed, and he advised demanded the release of Martin on grounds that it was unnecessary then “and it may be for that his escape and recapture had taken place all time” to do more.71 on American territory within the Alaskan Panhandle, a point British and Canadian

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH authorities were not willing to concede. A con- learned from the British government in 1868 siderable correspondence ensued, with Ambas- that although the United States was bound by sador Thornton renewing British suggestions the boundary provisions of this treaty (which for an accurate delimitation of the boundary were reproduced in the treaty of 1867), other line.74 On 3 March 1877, in an attempt to locate Russian obligations, including those connect- the boundary at least at the point in question, ed with navigation, had not been passed on. the Canadian government appointed a civil en- Nevertheless, the British government later took 81 gineer named Joseph Hunter to make a survey the view that although by Article 6 of the 1867 of the lower Stikine.75 Hunter’s report, com- treaty Russia ostensibly revoked the navigation posed after a very rapid and efficient survey, rights granted Britain in 1825, it could not do was handed in the following June.76 In a separ- this legally without British consent. In reality, ate note, he advised that the escape and recap- Britain itself had admitted the abrogation of ture of Martin had almost certainly taken place these rights by the negotiation of the Treaty on Alaskan soil.77 Influenced also by a dispatch of Washington in 1871 and by the terms of the from Colonial Secretary Lord Carnarvon rec- treaty itself. Therefore, whatever British rights ommending Martin’s release,78 the Canadian of this kind presently existed were derived only government agreed to set him free shortly from the Treaty of Washington, specifically afterwards.79 In February 1878, the American Article 26.83 government accepted a suggestion, presented British thought and action on this subject by Thornton on behalf of the Canadian gov- were highly unsatisfactory to some Canadian ernment, that Hunter’s demarcation of the officials, notably Minister of Justice Edward boundary at the Stikine should be accepted as a Blake, who maintained that British rights had provisional line for that area.80 continued unimpaired and unrestricted after There was confusion and uncertainty not 1867 but had been given away in return for only over the boundary at the Stikine but also very little in 1871.84 The differences between over navigation rights upon it. When Amer- the relevant sections of the treaties of 1825 and ican customs officials in the Panhandle -as 1871 were in fact of considerable significance, serted their intention in 1873 of preventing since the earlier treaty gave British subjects un- foreign ships from carrying freight through restricted rights of navigation upon all rivers the American part of this river, Thornton pro- flowing through thelisière , whereas the later tested on grounds that Article 26 of the Treaty treaty gave them rights of navigation for com- of Washington (8 May 1871) guaranteed free mercial purposes only, upon only three speci- navigation of the Stikine (as well as the Yukon fied rivers, and also conceded reciprocal rights and Porcupine) to subjects and citizens of both to American citizens in the Canadian parts Great Britain and the United States.81 In Janu- of these rivers.85 The British government cited ary 1874, Fish informed Thornton that the cus- the restriction of navigation in the Washing- toms officials had been instructed “to act in ton treaty to commercial navigation only as an accordance with the provisions of the Treaty of additional reason for setting Martin free,86 but Washington.”82 As already noted, HBC officials it does not appear that the broader question of had assumed at the time of the cession of Al- American inheritance of Russian responsibility aska that they would retain their rights under was ever conclusively settled. the Anglo-Russian treaty of 1825, but they

5 | The Alaska Boundary Dispute Little of note respecting the boundary oc- Canadian government would prefer a prelim- curred for several years, although some inter- inary survey that could lead to more definitive ested individuals realized the danger of leaving action afterwards.91 In the course of the cor- it unfixed. Among these was William H. Dall, respondence which followed, Lord Salisbury then a member of the US Coast and Geodetic drew attention to certain remarks made by Survey, who in April 1884 wrote to Canada’s Lieutenant Frederick Schwatka in his report of 82 George Dawson suggesting that “the mat- his journey through the Yukon and Alaska in ter of the boundary should be stirred up. The 1883, which located Fort Selkirk in Alaska and language of the Treaty of 1825 is so indefinite fixed Perrier’s Pass (on the Chilkoot Trail) and that were the region included for any cause to 140° W longitude as part of the international become suddenly of evident value, or if any boundary. Salisbury noted that Fort Selkirk serious international question were to arise re- was actually well within British territory and garding jurisdiction, there would be no means that Great Britain was not prepared to accept of settling it by the Treaty.” He remarked that Schwatka’s two points as fixing the boundary. since there was no natural boundary and since Carefully denying that any importance was at- the “long caterpillar” of mountains on Van- tached to the omission, Salisbury also observed couver’s charts had no existence as such, the that Schwatka had failed to inform British au- United States would undoubtedly wish to fall thorities of his desire to travel in British terri- back on the wording of the 1825 treaty: “line tory.92 Much more significant than the Schwat- parallel to the winding of the coast and which ka affair, however, was the conference held in shall never exceed the distance of ten marine Washington in late 1887 and early 1888 to set- leagues therefrom.” Even this would be imprac- tle North American fisheries rights and other ticable to trace; therefore determinable bound- outstanding questions between Great Britain aries should be agreed upon, and perhaps Daw- and the United States. Participants arranged son would “be able to set the ball in motion on to bring together Dawson and Dall as experts your side.”87 It does not appear that the sugges- to discuss the Alaska boundary, and it was tion as made had any immediate consequences through their discussions in Washington that in Canada, but the importance of a settlement irreconcilable differences of opinion respecting was apparent to Thomas F. Bayard, the new the boundary were brought into the open. In American Secretary of State, who after con- this development the so-called “Coast Doc- sulting with Dall wrote a letter to Ambassador trine”93 of Donald Cameron, formerly Bound- Edward John Phelps in London asking him to ary Commissioner and now a general, looms suggest to the British government the appoint- very large. ment of an international commission to fix the Cameron, who had been appointed an ad- boundary line.88 President Grover Cleveland viser to the Canadian government on the Alas- also referred to the matter with some urgency kan boundary and had given the matter much in his first annual message to Congress on 8 thought, explained his rather facile solution December 1885.89 Impressed by the new Amer- to the Panhandle problem in a lengthy report ican attitude, Lord Salisbury readily agreed written in 1886.94 The main question involved to consider Bayard’s suggestion.90 Later, after the interpretation to be given the expression consultations between British and Canadian “la côte” (“the coast” as used in the Anglo-Rus- officials, word was sent to Washington that the sian convention of 1825). Cameron disposed of

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH the question neatly and in a fashion decidedly and attempted to sell it to Dall during their favourable to Canada by concluding that “the Washington discussions in February 1888. coast” meant the general coastline of the con- It was not difficult for Dall to point out in tinent, cutting across both promontories and reply that the history of British-Russian nego- inlets but going around neither. He put forward tiations leading up to the convention showed his argument plausibly and forcefully: that “Russia needed, asked, and obtained the possession of the entire undivided coast mar- 83 It can easily be shown that the gin.”97 If the six-mile principle had been applic- general coast line of the continent, able and had been applied consistently, most of exclusive of inlets, creeks, and simi- the offshore islands as well as the inlets would lar narrow waterways, is the sense in have become subject to British sovereignty. which the words were used…. [T]he Furthermore, if the inlets had been intended line, whether marked by mountains to be British property, then there would have or only by a survey line, has to be been no need for any special provisions, such as drawn without reference to inlets…. those in the convention, to enable her to reach None of the inlets between Portland them. He went on: Channel and the Meridian of 141° W long. are six miles in width, except- It is, of course, in view of all the ing, perhaps, a short part of Lynn facts, nothing less than preposter- Canal. Consequently, with that pos- ous to suppose that Russia would sible exception, the width of territory have accepted a treaty which cut – on the coast assigned under the her “strip” of main-land into several Convention to Russia – may not be portions, or that Great Britain, hav- measured from any point within the ing the right to occupy with trading mouths of the inlets. All the waters posts the richest fur region of the within the mouths of the inlets are archipelago, and represented by the as much territorial waters, according Hudson’s Bay Company, the keenest to any universally admitted inter- corporation of that period, should national law, as those of fresh-water nevertheless not only not assert and lake or stream would be under an- use these rights, but on the other alogous circumstances.95 hand pay money and otter skins for these very privileges to a foreign and Thus, according to Cameron’s interpretation competing corporation.98 of the convention, inlets less than six miles in width were to be British territorial water, and Dall also disagreed with Cameron and Dawson accordingly Canada would have access to salt on other points, notably the identification of water at various places along a relatively narrow Portland Channel or Canal, but the most fun- panhandle. This was the Coast Doctrine, damental disagreement respected the lisière. “in all its mad beauty,” as one commentator He put forward his views in several memo- has remarked,96 and Dawson adopted this randa to Secretary of State Bayard, which were solution to the boundary problem in seemingly published in US Senate documents99 and later uncritical fashion from his former chief in the documents of the Alaska Boundary

5 | The Alaska Boundary Dispute Case. Obviously the arguments of Dall on boundary and had, so to speak, established the the one side, and Cameron and Dawson on lines of battle, little of note developed for sever- the other, were well known to responsible of- al years. On 10 September 1888, the Canadian ficials in both Canada and the United States government had received a report that the Al- (although probably not to the general public). askan authorities were about to grant a charter It seems very unfortunate, in retrospect, that for the construction of a trail from Lynn Canal 84 the vacuity and unreality of Cameron’s case, through White Pass to the interior of Alaska. and the cogency and logic of Dall’s, were not British Ambassador Sir Lionel Sackville-West fully appreciated and acknowledged at the time protested to Secretary of State Bayard that in Canada as well as in the United States. Had the territory in question was British.101 Bayard this been the case, much of the trouble over the could only reply that the “vague and indefinite” Alaska boundary might have been avoided. rumour had not come to the notice of his de- In the meantime, the British Columbia gov- partment.102 On 5 June 1891, Ambassador Jul- ernment had adopted and put forward a propos- ian Pauncefote called the attention of Secretary ition with even less substance than Cameron’s. of State James G. Blaine to a published report It was based upon a report written in 1884 by of the US Coast and Geodetic Survey refer- Judge John Gray of the Supreme Court of that ring to a planned survey of the frontier “about province, which argued that the boundary line 35 miles” from the coast and to the Canadian should not ascend Portland Channel as Arti- government’s feeling that “the actual bound- cle 3 of the Anglo-Russian treaty of 1825 said it ary line can only be properly determined by an should. Instead, Gray suggested that it should International Commission.”103 go through Clarence Strait just east of Prince of In February 1892, a conference took place Wales Island and strike the mainland at 56° N in Washington between Secretary of State latitude, thus making Revillagigedo Island and Blaine, his adviser J. W. Foster, Ambassador a large chunk of the mainland part of British Pauncefote, and Canadian ministers John Columbia. Gray claimed that the words “Port- Thompson, George Foster, and Mackenzie land Channel” had not really been in Article 3 Bowell, its outcome being an agreement for a of the treaty at all but rather were a “subsequent joint survey of the Alaska boundary line.104 interpolation” because, looking at the rest of the This agreement was formalized by a convention article, a line ascending “to the north” from the signed at Washington the following 22 July, “southernmost point” of Prince of Wales Island which provided for a survey of the territory ad- would not go up Portland Channel, and even jacent to the boundary line if it did, the channel would not take it “as far as” 56°. Gray had an even more vivid imagina- from the latitude of 54° 40' north tion than Cameron; nevertheless, in spite of the to the point where the said bound- transparent inaccuracy of his claim, some Can- ary line encounters the 141st degree adian government officials took it seriously, of longitude westward from the me- and even Dawson recommended that it should ridian of Greenwich … with a view be left for the Americans to refute.100 to the ascertainment of the facts and Although the Dall-Dawson discussions data necessary to the permanent de- had shown the wide divergences between limitation of said boundary line in American and Canadian views on the Alaska accordance with the spirit and intent

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH of the existing Treaties in regard to The portion of the boundary line running it between Great Britain and Russia north along the 141st meridian from Mount St. and between the United States and Elias posed a much smaller problem than the Russia.105 irregular portion extending southeast from the same mountain, which was supposed to show The convention stipulated that the survey was the limit of the Panhandle to its southern ex- to be completed in two years, but this allot- tremity. In the first case, it was only a matter of 85 ment of time was insufficient so a supplement- locating a boundary that was defined in such a ary convention was signed at Washington on way that disagreement about it was, if not im- 3 February 1894, extending the time limit to possible, at least most unlikely. In the second 31 December 1895.106 As commissioners, the case, it was necessary to reach agreement on British government appointed Canada’s chief where the boundary was supposed to run be- astronomer Dr. W. F. King,107 and the American fore the practical problem of marking it on the government appointed Superintendent of the ground could be undertaken. On 1 June 1895, US Coast and Geodetic Survey Thomas Cor- the Canadian government passed an order in win Mendenhall,108 the latter being replaced by council which took note of the need to deter- William Ward Duffield in June 1895.109 Duffield mine the location of the 141st meridian and ob- and King duly submitted a joint report, accom- served that William Ogilvie had already been panied by maps and photographs, on 31 De- dispatched to continue the survey he had begun cember 1895.110 In accordance with the terms in 1887–88, when he had fixed the intersections of the convention, the survey made no attempt of the 141st meridian with the Yukon River and actually to fix the boundary line, and its main Forty-mile Creek. The order also recommended value lay in the provision of necessary informa- seeking the co-operation of the United States, tion about the territory in dispute. preferably in joint action on the survey or, fail- The spectacular gold strike on the Klondike ing that, in temporary recognition of Ogilvie’s River in 1896, and the inevitable rush that fol- work without prejudice to the rights of either lowed, gave a new note of urgency to the need country when a joint survey should be made at for settlement of the boundary problem. The a later date.111 The British government proposed shortest and fastest route to the region from this to the United States on 20 August 1895,112 the west coast of both Canada and the United and after consideration the American govern- States passed through the Lynn Canal and over ment replied favourably on 11 March 1896, pro- the mountain passes to the headwaters of the posing a more limited joint survey that would Yukon, thus emphasizing in dramatic fashion concentrate initially on fixing principal points the importance of the whereabouts of the fron- along the 141st meridian. An order in council tier and also related questions of access, juris- issued by the new Laurier administration on 28 diction, and customs. Before long, a variety of September 1896 recommended acceptance of complaints and rumours of actual or threat- the American proposal, observing that the pre- ened clashes were filtering back to Ottawa and ceding Conservative government had taken the Washington, and it required little imagination same view.113 On 30 January 1897, a convention to appreciate that the possibility of real trouble was signed in Washington for “the demarcation had greatly increased. of so much of the 141st meridian of west longi- tude as may be necessary for the determination

5 | The Alaska Boundary Dispute of the boundary,”114 but the convention was with satisfaction.121 On 18 April 1898, Ambas- not ratified by the American Senate, and joint sador Pauncefote presented to the American action on this part of the boundary did not take Secretary of State a memorandum noting the place until after the dispute over the Panhandle Canadian government’s fear that divergent had been settled. views on the boundary would prevent any ac- Dyea and Skagway, the principal ports of complishment under the 1892 convention, but 86 entry at the head of the Lynn Canal for miners he also expressed its willingness to accept a and goods bound for the Yukon, quickly took provisional line “at the Watershed at the first on boom town characteristics. The refusal of summit north of Dyea” without prejudice to American officials to allow Canadian vessels to the claims of either party.122 The American land at these ports caused a chorus of Canadian government consented to this suggestion in a complaints, and Canadian Commissioner of note dated 9 May.123 Later in May, a series of Customs John McDougald wired the Treasury meetings were held in Washington, at which Department in Washington on 22 July 1897, arrangements were made for the establishment asking permission for Canadian goods to pass of a joint high commission to settle the princi- through to the Yukon without payment of cus- pal outstanding problems between Canada and toms duties, on condition that the parties con- the United States, the Alaska boundary being cerned pay for American officers to accompany one of them. A protocol of proceedings and the goods.115 Assistant Secretary of the Treasury conclusions was signed on 30 May, both parties W. B. Howell wired back promptly suggesting appointed high commissioners, and each sent that Dyea be made a sub-port of entry under the other a memorandum of its views.124 these conditions,116 and a day later he sent an- Under the terms of the protocol, the joint other wire saying that this had been done.117 high commission of six American and six Brit- About a month later, another Canadian request ish appointees held meetings in Quebec City was made for the same privilege at Skagway,118 between 23 August and 10 October 1898, and eliciting the response that this had already in Washington between 9 November 1898 and been done.119 Needless to say, these requests 20 February 1899. Attempts were made to deal were afterwards used by the United States to comprehensively with the dozen or so subjects buttress her case for ownership of all the land listed for discussion on the lengthy agenda, on the shores of the Lynn Canal.120 including Bering Sea fur seals and Atlantic On 23 February 1898, the British govern- fisheries. It proved impossible to reach agree- ment proposed to the American government ment on the Alaska boundary question, how- that the determination of the boundary south ever, and on this stumbling block the entire of Mount St. Elias “should at once be referred conference foundered. Lord Farrer Herschell, to three Commissioners (who should be jurists head of the British-Canadian delegation, had of high standing), one to be appointed by each been persuaded (evidently against his better Government, and a third by an independent judgment)125 to put forward a combination of Power,” the commissioners to begin immedi- the British Columbia government’s and Major ately by fixing the frontier at the heads of inlets General Cameron’s claims in extreme form. used for traffic to the Yukon. The proposal -add These claims had been adopted and given au- ed that, pending this settlement of the bound- thoritative expression by Canadian Minister ary, Great Britain would view a modus vivendi of the Interior Clifford Sifton and would have

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH 87

Figure 5-2: Map of U.S. and Canadian claims and the accepted boundary. National Atlas of Canada, 1906.

5 | The Alaska Boundary Dispute made the boundary run through Clarence the other matters before the commission, the Strait east of Prince of Wales Island instead Americans wanted to proceed with these even of up Portland Channel, and then across the if the Alaska boundary remained unsettled, promontories of the coast so as to leave all the but the British-Canadians insisted that only a major inlets in British (Canadian) possession.126 package deal could be accepted. The deadlock Not surprisingly, the Americans firmly rejected on the Alaska boundary being insurmount- 88 this proposition. The Canadians were particu- able, the meetings broke off on 20 February larly anxious to have direct access to salt water 1899 without achievement.131 from the Yukon, and Herschell proposed that On 20 March 1899, Secretary of State John the United States should cede to Canada Pyra- Hay wrote a note to Pauncefote suggesting a mid Harbour on Chilkat Inlet at the upper end provisional boundary line around the head of of the Lynn Canal, with a strip of land along Lynn Canal “at the water shed on the summit the Chilkat River and Pass to connect the port of White and Chilkoot Passes, and at a point with the Yukon. The Americans countered thirty marine miles from Pyramid Harbour on with offers of free use of all ports on the Lynn the Chilkat Pass and otherwise known as the Canal and a fifty-year lease of Pyramid Harbor Dalton Trail.”132 Pauncefote referred this sug- and the desired strip.127 gestion to the Canadian government, which As the impossibility of compromise be- was willing to accept the watershed for White came increasingly evident, the British delega- and Chilkoot Passes as a provisional line, but tion proposed on 16 December (and repeat- contended that for Chilkat Pass the boundary edly afterwards) that the entire Panhandle should be placed provisionally “at the crest of boundary should be submitted to arbitration the mountains nearest to the coast.” The entire by legal experts.128 Much haggling ensued over boundary line from Prince of Wales Island to the terms of the proposed arbitration, with the Mount St. Elias, however, should be determined Americans insisting that the headwaters and by arbitration.133 On 13 May, Francis Hyde Vil- shore of Lynn Canal should not be subject to liers, the Assistant Under Secretary at the For- determination. The British wanted to associate eign Office writing on behalf of Lord Salisbury, an Alaska boundary compromise with the pro- sent a note to US Ambassador Joseph Hodges posed abrogation of the Clayton-Bulwer Treaty Choate informing him that the Canadian gov- of 1850 relating to a Panama Canal, but the ernment had agreed that the Alaska boundary Americans wanted to keep the issues separate. dispute could be referred to arbitration at once The United States had its way, as Great Britain along the lines of the Venezuela-British Guiana signed a new treaty on 18 November 1901, pro- boundary arbitration treaty (thus separating viding for American construction of the canal, it from the other points at issue) and that the before the Alaska boundary dispute had been Canadians were willing to proceed with these settled.129 The Americans had hoped that Lord other matters as soon as an arbitration agree- Herschell would be more reasonable to deal ment had been reached.134 with than the Canadian delegates, whom they Lord Salisbury wrote a further note on 1 expected to be difficult, but as events turned July, emphasizing that settlement of the Alaska out they found Herschell “more cantankerous boundary problem seemed impossible except than any of the Canadians.”130 Since there ap- through arbitration and proposing formally peared to be good prospects for progress on that the Venezuela treaty should be applied.135

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH The American government was not inclined Government, and a third by an to accept the Venezuela treaty as a definitive independent Power”;139 guide, however, on grounds that – unlike the British-Venezuelan territorial dispute – the dis- (b) “legal experts” or “legal and sci- pute over the Panhandle strip was new and no entific experts” without specifica- 140 protest over occupied settlements therein had tion as to number; and 136 been made until recently. On 17 August, Sir (c) three “eminent” jurists or jurists 89 Wilfrid Laurier, in explaining his Cabinet’s “of repute,” one to be appointed rejection of a British proposal that Canada by the United States, one by Great should have a perpetual lease of half a square Britain, and the third by the other mile on the Lynn Canal and a railway right-of- two.141 way to the Yukon, reiterated the Canadian con- tention that “the only solution is a reference of Proposals (b) and (c) had been put forward by 137 the whole matter to arbitration.” the British-Canadian representatives on the After much bargaining over Hay’s proposal joint high commission suggesting “four mem- of 20 March 1899, the parties agreed to a mo- bers – two to be named by each Government, dus vivendi on 20 October of the same year, one to be a legal expert and one an expert of setting a provisional boundary line around the established reputation in the science of geog- head of Lynn Canal. On the Dyea and Skag- raphy and geodesy”142 and then an arbitral tri- way Trails, the line was placed at the summits bunal of “six impartial jurists of repute,” three of the Chilkoot and White Passes, respective- to be nominated by Great Britain and three by ly, as Hay had suggested, while in the Dalton the United States.143 Pass–Chilkat River region it was to run along The basic British-Canadian and American the right (south) bank of the little Klehini River concepts of the tribunal were radically differ- to its junction with the Chilkat and from there ent, and each side held to its own point of view eastward to the summit of a specified prom- with tenacity. The British, and more particu- inent peak. The document stated clearly that larly the Canadians, wanted an odd-numbered the arrangement was without prejudice to the tribunal with a neutral member, believing that claims of either party in the permanent fixing there would be a better chance that such a body 138 of the boundary. would reach a decision and also that in case of For over three years, however, little prog- a division there would be a better chance that ress towards a permanent settlement was made. an impartial vote would determine the major- Negotiations continued in desultory fashion, ity. The Americans, feeling at heart that refer- one of the principal points at issue being the ence of the matter to a tribunal would in reality composition of the proposed arbitration tribu- constitute an unwarranted concession on their nal. Early British proposals for such a tribunal part, held out for an even-numbered tribunal had taken a variety of forms: without a neutral member so that their appoin- tees could not be outvoted.144 (a) “three Commissioners (who The Spanish-American War had tended should be jurists of high stand- to draw American attention away from other ing), one to be appointed by each issues in 1898; the Boer War similarly attracted

5 | The Alaska Boundary Dispute British attention between 1899 and 1902. The government replied that it “would be disposed stubborn but futile British and Canadian at- to consider it favourably, provided the reference tempt to relate the abrogation of the Clay- to the Tribunal should include all aspects of the ton-Bulwer Treaty to the Alaska boundary dis- question.”149 On receiving word of this from pute was another reason for loss of time. There the British government, Hay indicated his own were distracting elections in all three countries concurrence, although he would have to con- 90 in 1900: in Great Britain in October and in the sult the president about it. He also gave British United States and Canada in November. The Ambassador Sir Michael Herbert the impres- assassination of President William McKinley sion that he would now accept a decision of the in September 1901 threw American affairs into judicial tribunal as final.150 Negotiations now momentary disarray, but the succession of Vice focused mainly on a draft treaty, which would President Theodore Roosevelt to the presidency specify precisely the terms of reference under brought to office a much more belligerent de- which the tribunal would function, and the fender of American interests than McKin- points of dispute about the boundary, which ley had been. Roosevelt soon made it evident it would undertake to resolve. On 23 January that he felt there was nothing of importance to 1903, Foreign Secretary Lansdowne cabled in- arbitrate in the Alaska boundary dispute, and structions to Herbert to sign the treaty as it had if there was to be a settlement, it must be on been framed,151 and this was done the following American terms. day.152 The uncompromising attitude of President Roosevelt caused concern in both Canada and Great Britain. In March 1902, he gave orders The Case for the dispatch of additional troops to Alas- 145 ka, and from time to time he made aggressive The treaty provided for the immediate ap- statements, the general tenor of which was to pointment of “six impartial jurists of repute,” the effect that the Canadians “did not have a leg three by His Britannic Majesty and three by 146 to stand on” in their contentions. Prime Min- the President of the United States, who were to ister Laurier went to London in 1902 to attend “consider judicially the questions submitted to the colonial conference which was meeting that them,” and who would decide all questions by year, and while there, evidently under British majority vote. Each of the two high contracting pressure, he agreed to accept the American de- parties was to appoint an agent and whatever mand that the proposed boundary commission counsel it wished, and each was to pay for their should have an even number of members, all of services as well as for the services of its appoin- whom would be appointed by the parties to the tees to the tribunal. The written or printed case 147 dispute. This concession removed one of the of each party, accompanied by all documen- major points of disagreement, and henceforth tary evidence, was to be presented within two events moved more rapidly. months of the date of ratification of the treaty; On 17 October 1902, Secretary of State Hay within two months of this date of presentation, reiterated an earlier American proposal that, although with provision for a time extension, instead of rendering a decision, the members each party was entitled to present a counter of the tribunal “should merely place their rea- case with additional documentary evidence. soned opinions on record.”148 The Canadian

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Within two months from the expiration of the head of the Portland Channel, time allowed for delivery of the counter cases, and what course should it follow each party was obligated to present a written between these points? or printed argument which it could support before the tribunal by oral argument of coun- 5. In extending the line of demarca- sel. The tribunal was to assemble in London as tion northward from said point on the parallel of the 56th degree of soon as possible and, subject to a provision for 91 extension of time by agreement of the two par- north latitude, following the crest ties, render its decision within three months of of the mountains situated parallel the conclusion of the arguments. The decision to the coast until its intersection was to be final and binding, and upon receiv- with the 141st degree of longi- ing it both parties immediately were to appoint tude west of Greenwich, subject scientific experts to lay down the boundary line to the condition that if such line in conformity with its terms. Article III of the should anywhere exceed the dis- treaty specified that the tribunal should con- tance of 10 marine leagues from sider, in settling the questions submitted to it, the ocean, then the boundary be- the treaties of 1825 and 1867, and particularly tween the British and the Russian the third, fourth, and fifth articles of the 1825 territory should be formed by a treaty, which were reproduced word for word line parallel to the sinuosities of in French from the original text. The specific the coast and distant therefrom questions which the tribunal was to decide not more than 10 marine leagues, were set down in precise terms in a key article was it the intention and meaning of the convention: of said Convention of 1825 that there should remain in the exclu- Article IV. Referring to Articles sive possession of Russia a con- III, IV, and V of the said Treaty of tinuous fringe, or strip, of coast 1825, the said Tribunal shall answer on the mainland, not exceeding and decide the following questions: – 10 marine leagues in width, sep- arating the British possessions from the bays, ports, inlets, ha- 1. What is intended as the point of vens, and waters of the ocean, and commencement of the line? extending from the said point on the 56th degree of latitude north 2. What channel is the Portland to a point where such line of de- Channel? marcation should intersect the 3. What course should the line take 141st degree of longitude west of from the point of commence- the meridian of Greenwich? ment to the entrance to Portland 6. If the foregoing question should Channel? be answered in the negative, and 4. To what point on the 56th parallel in the event of the summit of is the line to be drawn from the such mountains proving to be

5 | The Alaska Boundary Dispute in places more than 10 marine which protested strongly on the reasonable leagues from the coast, should the grounds that it had agreed to the tribunal on width of the lisière which was to the understanding that the appointees would belong to Russia be measured (1) be “impartial jurists.”156 As a matter of fact, from the mainland coast of the all three were eminent lawyers, but they could ocean, strictly so-called, along a hardly be considered impartial, since all three 92 line perpendicular thereto, or (2) were currently political rather than legal in was it the intention and meaning their primary responsibilities. Root, although of the said Convention that where highly esteemed abroad as well as at home, the mainland coast is indented was circumscribed through being a member by deep inlets forming part of of Roosevelt’s Cabinet. Both Lodge and Turner the territorial waters of Russia, had already publicly committed themselves to the width of the lisière was to be the American side of the case. Furthermore, measured (a) from the line of the Lodge was well known to be an aggressive general direction of the mainland Anglophobe, and Turner represented the state coast or (b) from the line separat- which had the most direct interest in Alaskan ing the waters of the ocean from affairs. The British government, although “as the territorial waters of Russia, or much surprised” as the Canadians at the dis- (c) from the heads of the aforesaid heartening turn of events, stressed the “diffi- inlets? culty” of the situation and their earnest desire “to have the concurrence” of the Canadian gov- 7. What, if any exist, are the ernment in dealing with it.157 They had already mountains referred to as situ- foreshadowed their ratification of the treaty in ated parallel to the coast, [and] the Speech from the Throne on 17 February, which mountains, when within before communicating the news of Roosevelt’s 10 marine leagues from the coast, selections to Ottawa; the ratifications were duly are declared to form the eastern exchanged in Washington on 3 March, while 153 boundary? the situation was still under the consideration of the Canadian government.158 The selection of the “six impartial jurists of re- Partial explanations for Roosevelt’s ap- pute” became a matter of bitter controversy and pointments have been offered by suggestions recrimination. For Canada, it left the most last- that he first asked at least two159 (and perhaps ing scars of dissatisfaction and ill feeling. On all160) of the members of the Supreme Court to 14 February, Ambassador Herbert sent a cable serve and met with refusal in each case. Wheth- to the Marquis of Lansdowne saying that he er he was merely going through the motions is had learned that day from Secretary Hay that a valid question. At any rate, he was undoubt- President Roosevelt would probably appoint edly concerned about the problem of securing as American members of the tribunal Senator the Senate’s approval of the treaty, and Lodge Henry Cabot Lodge of Massachusetts, Senator recounted afterwards that he had impressed George Turner of Washington, and Secretary upon the president the virtual impossibility of 154 of War Elihu Root. Four days later, the news getting this approval unless the appointments 155 was relayed to the Canadian government, were satisfactory from that body’s point of

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH view. Lodge recalled that the treaty had been Canada for six years, is that it may put in his charge, and when several senators, just as well be decided in advance especially from the Northwest, informed him that practically whatever the United that they would have to have assurance about States demands from England will American representation on the tribunal, he be conceded in the long run, and the obtained permission from the president to Canadian people might as well make 162 tell them in confidence whom the appointees up their minds to the now. 93 would be. This information quieted their objec- tions, and the Senate ratified the treaty on 11 The British government was convinced that it February. One American who was not pleased would be useless to press the United States to with the appointments was Secretary Hay who, change the American representatives on the according to Lodge, “was extremely displeased tribunal and extremely unwise to break off and protested in the strongest way to the Presi- negotiations altogether, but it dropped a broad dent against Mr. Root, and even more strongly hint to the Canadians that retaliation might be against me, taking the ground that our opin- made by appointing “representatives appropri- ions were already well known, which was also ate to the altered circumstances of the case.”163 true of Senator Turner.”161 The Canadian government declined to accept Typical of angry Canadian comment was the suggestion, however, and held to the view the following, which John W. Dafoe of the that if the case were to proceed, “only Judges Winnipeg Free Press received in a letter written of the higher Courts, who in the best sense of to him “about this time” by Minister of the In- the words would be impartial jurists of repute, terior Clifford Sifton: should be chosen.”164 In accord with Canadian wishes, the three men appointed were Lord As you have no doubt already Alverstone, Lord Chief Justice of England; Sir sized the matter up, the British Gov- Louis Jetté, former judge of the Superior Court ernment deliberately decided about a of Quebec and currently Lieutenant-Governor year ago to sacrifice our interests at of that province; and John Douglas Armour, any cost, for the sake of pleasing the justice of the Supreme Court of Canada.165 United States. All their proceedings On the death of Justice Armour in July 1903, since that time were for the sake of Allen B. Aylesworth, KC, of the Ontario bar, inveigling us into a position from was appointed to replace him.166 Clifford Sif- which we could not retire.… ton was named agent for the British-Canadian It is, however, the most side, with Under Secretary of State Joseph Pope cold-blooded case of absolutely giv- and Chief Astronomer W. F. King to assist ing away our interest, without even him. Senior members of counsel were Attor- giving us the excuse of saying we ney General of England Sir Robert Finlay, So- have had a fight for it, which I know licitor General of England Sir Edward Carson of, and I do not see any reason why (replacing former Canadian Liberal leader Ed- the Canadian press should not make ward Blake, who was forced to retire because of itself extremely plain upon the sub- illness), and Christopher Robinson of Toronto. ject. My view, in watching the dip- The junior members, several of whom were des- lomacy of Great Britain as affecting tined to achieve distinction in their own rights,

5 | The Alaska Boundary Dispute were Lyman P. Duff, Aimé Geoffrion, and F. C. Wade of the Canadian bar and John A. Simon You will of course impartially and S. A. Rowlatt of the English bar. General judge the questions that come before John W. Foster acted as agent for the United you for decision.…There is entire States, with several experts to assist him; the room for discussion and judicial and American counsel were Jacob M. Dickinson, impartial agreement as to the exact 94 David T. Watson, Hannis Taylor, and Chandler boundary in any given locality.… In P. Anderson. 167 the principle involved there will of Preparation of the cases, counter cases, and course be no compromise.172 printed arguments occupied approximately six months after the exchange of ratifications on 3 On 25 July, Roosevelt wrote a letter to Justice March. The British-Canadian side tried repeat- Oliver Wendell Holmes of the US Supreme edly for extensions of time and for postpone- Court, who was in England at the time, saying ments of the date when the oral arguments that although he wished to make one last effort would begin, but the Americans refused to ac- to reach a settlement through the tribunal, he commodate them. Secretary Hay was person- wanted it distinctly understood that if there was ally inclined to grant the requested additional disagreement, he would get Congress to give time,168 but others, including Lodge and the him authority “to run the line as we claim it, president himself, took the hard line that none by our own people, without any further regard should be allowed.169 Hay’s position became to the attitude of England and Canada.” Since so uncomfortable that he offered his resigna- he also made clear that Holmes was “entirely tion, but the president declined to accept it.170 at liberty” to pass the information on to Col- Evidently the main reason for the American onial Secretary Joseph Chamberlain, the judge refusal was that the members of its tribunal took this extraordinary step.173 On 26 Septem- wanted to leave England in October so as to be ber, he wrote in similar vein to Henry White, back in the United States for the approaching Secretary of the American embassy in London, sessions of Congress – a revealing indication, and suggested that White impart its contents no doubt, of the “judiciality” of Roosevelt’s to Prime Minister Balfour.174 The president also appointments.171 asserted his willingness to resort to force of While the preparation of the cases was arms, and in a letter to Senator George Turner, in progress, Roosevelt issued a barrage of let- he remarked that in case of disagreement he ters, statements, and instructions which left was ready to “send a brigade of American regu- no doubt about his own stand. On 25 March lars up to Skagway and take possession of the 1903, for example, he sent “personal and con- disputed territory and hold it by all the power fidential” instructions to the three American and force of the United States.”175 There can commissioners on the tribunal, in which he be little doubt, as Philip Jessup remarks, that described the Canadian claims as untenable the British government was made thoroughly and the Canadian position as far from judicial. aware of the Rooseveltian viewpoint.176 He also insisted that the question of Canadian In this general atmosphere of anxiety, sus- ownership of salt water harbours should not picion, and antagonism, which fortunately did be open for discussion. In rather contradictory not seem to affect the proceedings themselves, fashion, however, he said: the tribunal met for the first time at the Foreign

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Office in London on 3 September 1903. On the larger Prince of Wales Island north of Dixon motion of Elihu Root, Lord Alverstone was Entrance. A further point of confusion, regard- unanimously elected president of the tribunal, ing the choice of the beginning point from two and it was agreed that oral arguments would promontories, was eliminated without much begin on 15 September and continue thereafter difficulty. The southern extremity of Prince on weekdays, Monday through Friday, until of Wales Island was actually Cape Chacon, finished. Finlay, Robinson, and Carson spoke while Cape Muzon (although a short distance 95 for the British-Canadian side and Watson, Tay- further south) was the southern tip of nearby lor, and Dickinson for the American side, in Dall Island. The British, however, were willing each case in the order just given, with the first to admit that neither Captain George Vancou- group having the first, third, and fifth places ver, who surveyed the island in 1793, nor the and the other the second, fourth, and sixth. negotiations in 1825, realized that Dall Island The printed cases, counter cases, and argu- was separated from Prince of Wales Island, ments had been prepared with great care and and thus they conceded that the more south- in great detail, considering the limited amount erly Cape Muzon was the legitimate beginning of time available, and the oral arguments, al- point according to the intent of the treaty.177 though unequal as to length and also as to The second question, regarding the identity merit, developed the main issues of the contro- of Portland Canal, caused more disagreement versy thoroughly. The oral argument ended on within the tribunal than any other – to such an 8 October, and the decision of the tribunal was extent that in the end the Canadian members handed down on 20 October. refused to sign the award. The British-Can- The printed materials and the oral argu- adian side argued that the true Portland Canal ments all devoted considerable attention to the was the one that had been surveyed and given historical background of the case and other this name by Captain Vancouver in 1793 and relevant or supporting information, but neces- that his identification of it had been known and sarily the major concentration was placed upon used by the negotiators who made the treaty of the seven specific questions which the tribunal 1825. They claimed that Vancouver himself had was called upon to answer. It may be conven- identified it as the long passage that extended ient here also to concentrate upon these seven all the way from its upper end close to 56° N questions, which in summary were handled as latitude to open water, passing north of Pearse, follows. Wales, Sitklan, and Kannaghunut Islands. On the first question, regarding the be- Thus these islands were British territory. In ginning point of the line, there was virtual making this claim, they relied heavily upon a argument and consequently little discussion. statement in Vancouver’s own narrative, where Article 3 of the 1825 treaty had identified “the he referred to this passage as “that arm of the southernmost point of the island called Prince sea, whose examination had occupied our time of Wales Island” as the spot where the line from the 27th of the preceding to the 2d. of this should begin. As the British case observed, month … which, in honor of the noble family the United States had once attempted to apply of Bentinck, I named Portland’s Canal.”178 Their this description to Wales Island at the outlet of contention was strongly supported by this and Portland Channel but had abandoned the at- other evidence, and the other side did not ques- tempt, and both sides now accepted the much tion that Vancouver’s route down the passage

5 | The Alaska Boundary Dispute had taken him north of all four islands. They Sitklan Islands, through which he sailed, or the also held that Vancouver’s Observatory In- shorter, broader, clearer, more navigable Ton- let, just south of Portland Canal, extended all gass Passage between Sitklan and Wales Island, the way from its inner extremity to the main which he saw but did not sail through on his outlet south of Point Wales on Wales Island, way out of Portland Canal.182 and they cited as their main evidence another The answer to the third question, regard- 96 statement in Vancouver’s narrative (“The west ing the course the line should take from its point of Observatory inlet I distinguished by beginning point to the entrance of Portland calling it Point Wales”).179 They discounted the Canal, depended largely on the answer to the importance of post-1825 maps and interpreta- second. The British-Canadian counsel argued tions, saying that these could not have had any that the words “54 degrees 40 minutes” in Arti- bearing upon the negotiations leading up to the cle 3 of the 1825 treaty were only intended to treaty in that year. They also maintained that aid in identifying the beginning point at the the expressions “Portland Canal” and “Port- southern extremity of Prince of Wales Island land Channel,” both of which had been used, and were not intended to describe the course had the same meaning.180 to be followed. The line between the two points The American counsel agreed with the Brit- in question should be the shortest and most ish so far as the upper part of Portland Canal direct possible, and since a straight line from was concerned, but they maintained that in its Cape Muzon to the entrance of Portland Can- lower reaches it turned south between Pearse al (as interpreted by the British) would cut off Island and Point Ramsden, and from there to Cape Chacon and some small islands nearby, open water was actually what the British called it would be necessary to draw two straight the lower part of Observatory Inlet. Thus a line lines, one from Cape Muzon to Cape Chacon drawn through the American “Portland Can- and another from Cape Chacon to the chan- al” would give the four islands in question to nel entrance.183 The Americans at first simply the United States. To the Americans, Observ- asked that the line should run “in an easter- atory Inlet was only that part of the British ly direction” to the middle of the entrance of Observatory Inlet which extended northeast what they conceived to be Portland Channel, of Point Ramsden. What was important, they but later they advanced the argument that the said, was the Portland Canal of the negotiators line was intended to run along the parallel of in 1825, maintaining that these men must have 54° 40', which would in fact take it very close to seen Portland Canal either as the entire estuary the point they wanted it to reach.184 from the mainland (including the four islands The fourth question, regarding the point and also the upper part of the British Port- on the 56th parallel to which the line should land Canal) or simply as the upper part alone, be drawn from the head of Portland Channel, with the large estuary being left unnamed. In and the course this line should follow, resulted either case, the boundary line should follow the from the false assumption in the negotiations main passage south of the four islands.181 Sen- leading up to the treaty of 1825 that Portland ator Turner raised the further question as to Channel extended up to 65°. Actually only a whether Vancouver, in naming Portland Can- few miles intervened, in a direct line, but the al, considered its opening to be the narrow, is- opposing views as to how the discrepancy in land-filled passage north of Kannaghunut and the treaty should be resolved differed radically.

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH The British argued “that the point in the 56th the three together, with most emphasis falling parallel to which the line should be drawn is the upon the fifth.) point from which it is possible to continue the The British-Canadian side argued that the line along the crest of the mountains situated answer to the fifth question should be in the parallel to the coast, and, accordingly, that the negative. They held that the words “ocean” and point at which the 56th parallel and the crest “coast” as used in the treaty of 1825 in refer- of the coast mountains coincide is the point in ence to the boundary must refer to the same 97 question.”185 Since they were contending for a line, since where one ends the other begins. very narrow, broken coastal strip, governed by These words could not have been intended to a line of mountain crests very close to water’s apply to the water and land of the deep inlets, edge, they located the point in question far to however, so the boundary line must cut across the west of the head of Portland Canal, actual- these inlets, making everything on the inner ly on Cleveland Peninsula to the northwest of side British. It would be impossible to draw a Revillagigedo Island. The intervening distance ten-marine-league line parallel to all the wind- was about seventy miles, and they proposed ings and indentions at the edge of tide water to bridge it by a straight line which would run or salt water; on the other hand, it would be only slightly north of due west. The Americans quite possible to draw it parallel to the “general maintained that the logical interpretation of coast,” and since the possible rather than the the treaty was that the line should be continued impossible was contemplated, the line should in the direction it was following along Portland be drawn in this fashion, cutting across both Channel until it struck the 56th parallel, with- deep inlets and long promontories. This would out immediate regard to mountains, and that it admittedly have left Russia with a narrow, should then be taken directly to the appropriate broken strip, while Britain would mountain top in the coastal chain, which they, of course, located much farther inland than the have access to salt water in a British did. They held that the British line was number of places. However, the not only illogical but in violation of the treaty, only difficulty in accepting this lay since it would cross salt water and also a small in reading into the treaty a control- island north of Revillagigedo Island.186 ling principle that British territory The fifth question was long and involved, should at no point touch salt water, but in essence it amounted to whether it was and this principle was nowhere stat- the intention and meaning of the 1825 conven- ed in the treaty. The establishment tion that Russia should have a continuous strip of the lisière had nothing to do with of coast on the mainland, not more than ten British access to and use of the sea; marine leagues in width, separating the Brit- what Russia wanted was to stop Brit- ish possessions from salt water. This was clearly ain from having liberty to settle and the most important question put to the tribu- trade near her own establishments nal, and the outcome of the entire controversy on the islands. Russia herself had no depended to a large extent on its answer. (The settlements on the mainland in this sixth and seventh questions were obvious- region and was not in possession ly closely related to it and largely dependent of it, and in fact had only Sitka as a upon it; hence most of the arguments treated genuine possession on the adjacent

5 | The Alaska Boundary Dispute islands. Maps and documents had no implications in this direction of episodes such value insofar as they misrepresented as the Dryad affair, the lease of thelisière by the or contradicted the treaty; neither HBC, the Peter Martin affair, and the Hunter had later American acts of possession survey. Governments, geographers, cartog- and administration insofar as they raphers, and historians, including British and were done in the face of Canadian Canadian, had all given either implicit or ex- 98 protests or while the countries were plicit endorsement to the American contention, at issue on the question. Canada had which was fortified by substantial and continu- protested certain American action, ous measures of occupation and administra- but could not be held responsible tion. Although American officials had become for not protesting others of which aware of the Canadian challenge, notably as a she had known nothing. Canadian result of the Dall-Dawson discussions in 1888, admissions of American possession the American government had received no could not be taken also as admis- distinct, official announcement of any British sions that mere possession precluded claim at variance with the concept of an un- questions of right.187 broken lisière until 3 August 1898, on the eve of the meeting of the joint high commission. On The American side argued that the fifth ques- the subject of the coastline, tion should be answered in the affirmative: that the 1825 convention was intended to give, and there are but two possible coast that it had given, a continuous strip of coast on lines known to international law. the mainland to Russia which shut off the Brit- One is the physical coast line traced ish territories from salt water. They maintained by the hand of nature, where the that Russia’s primary object in the negotiations salt water touches the land, which leading up to the treaty had been to secure exists for the purpose of boundary: such a strip, that Britain in the end had agreed the second is the political coast line that she should have it, and that the agreement – that invisible thing superimposed had been written into the treaty and clearly upon the physical coast by the oper- understood on both sides. In purchasing Al- ation of law, which exists for the pur- aska in 1867 and acquiring all Russian rights pose of jurisdiction.188 therein, the United States had relied upon this interpretation of the treaty; both Russia before In this case, there was already a political coast- 1867, and the United States for fully thirty years line, which lay outside the archipelago, so afterwards, had acted under the assumption there could not possibly be a second political that they had full sovereignty over an unbrok- coast lying behind it. In any event, the coast- en coastal strip, without any formal protest of line of relevance here was the physical coast- objection from Great Britain. On the contrary, line, where land and salt water met, and there British and Canadian official acts, declarations, could be no such thing as a general trend of the and publications after 1825 consistently dem- physical coastline. “Ocean” is to be considered onstrated their acceptance and recognition as analogous to “man” in that each word com- of first Russian and then American title, and prehends not only the main body but also the the American case and counsel pointed to the arms or limbs.189

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH The British-Canadian side pointed out that would be in direct conflict with the plain intent the sixth question had to be answered only if and meaning of the treaty of 1825 and that it two conditions were fulfilled: (a) that the fifth would be utterly unreasonable to suppose that question had been answered in the negative the Russians had conceded such a line to the and (b) that the summit of the mountains in British, since it would have deprived them of question proved to be in some places more than practically every safe harbour and anchorage 191 ten marine leagues from the coast. Since they on the mainland coast. 99 requested the first and anticipated the second, On the seventh question, of the existence they took the view that the sixth question re- and identity of mountains forming the east- quired an answer. It had been badly framed, ern boundary, the British-Canadian side con- and its wording gave everyone concerned a cer- tended that there were such mountains which tain amount of difficulty, but according to their fulfilled the requirements of the treaty and that interpretation the alternatives it posed in Parts they lay parallel to the general coast all the way 1 and 2(a) were essentially the same, and thus along the lisière north of 56°. These mountains there were really three alternatives: 1 and 2(a) were to constitute the boundary within the ten- together, or 2(b), or 2(c). That is to say, if the marine-league distance from the coast, and above two conditions were fulfilled, the width this distance was to be invoked only as a limit of the lisière could be measure from the line of to mark the maximum possible breadth of the the general direction of the mainland coast (1 strip when the mountain chain went beyond and 2[a]), or from the line separating the wat- it or ceased altogether. It was not necessary ers of the ocean from the territorial waters of that this mountain chain should be complete- Russia (2[b]), or from the heads of the inlets ly continuous and unbroken; on the contrary, (2[c]). They held, of course, that the measure- the line it made could continue across rivers, ment should be taken from the line of the gen- valleys, and inlets. The expression “la crête des eral direction of the mainland coast according montagnes” or “the summit of the mountains” to the first alternative, and thus the upper part in the 1825 treaty meant the tops of the moun- of the deeper inlets would be British. In cases tains adjacent to the sea; the best evidence of where the line of mountains cut across the in- this was that although Britain had suggested lets, the waters inside this mark would also be a line along “the base of the mountains near- British.190 est the sea,” at Russian insistence the line was Since the Americans argued that the fifth moved to the summit of these same moun- question should be answered in the affirma- tains. Thus the strip would be very narrow tive, it follows that according to their view the throughout most of its length. The line would sixth question did not require an answer. But connect the summits of appropriate mountains if the tribunal should decide against them on next to the coast, and although it could not be the fifth question, the sixth had to be answered, argued that there was anything definite about and they held that the width of the lisière should the choice of such mountains, nevertheless the be measured from the heads of the inlets – in treaty clearly meant that this was the way the which case the result would be approximate- line should be drawn.192 ly the same as if they had won the answer to The Americans argued that the contract- the fifth. They maintained that a boundary ing parties in 1825 intended that the width of line placed according to the British contention the lisière should be consistently ten marine

5 | The Alaska Boundary Dispute leagues measured from tide water, unless with- unauthorized fixing of the boundary during in that distance there was wholly or in part a his 1883 reconnaissance;195 Dawson’s firm ex- continuous range of mountains extending the pression of opinion about the coastal strip full length of the strip. The negotiators had be- during his discussions with Dall in 1888;196 the lieved that such a range existed, but in fact it British protest over the projected construction did not, and nothing could be distinguished by Americans of a trail from Lynn Canal over 197 100 beyond a veritable sea of mountains. Thus the White Pass in 1888; the convention of ten marine leagues, rather than an imaginary 1892 which dealt with an “existing boundary” range of mountains, became the controlling that required only “permanent delimitation”;198 feature and should be applied throughout. and Lord Salisbury’s dispatch of 19 July 1898, They maintained that the British-Canadian which stated clearly the British view that the side was mistaken in translating “la crête des provisional boundary which had been agreed montagnes” to signify the tips of individual upon at the head of the Lynn Canal was more mountains; rather it signified a continuous than one hundred miles from the ocean.199 As mountain ridge, which also was non-existent. evidence that the Canadian contention had Therefore the proposal to form the boundary come to the notice of official circles in the line by connecting arbitrarily selected moun- United States, they pointed out that the Amer- tain tops was invalid. The other side was also ican president had laid the report of the 1887– mistaken in assuming that the mountain range 88 conference (with some of the Dawson-Dall nearest the sea, if one existed, should be taken. documents) before Congress200 and that the What was contemplated in 1825 was a principal Canadian claims had been referred to in Con- range farther from the coast, as depicted on the gress on at least two occasions. On 3 January maps of the time.193 1896, Senator Watson C. Squire read a report to Running through the case, and recurring the Senate about the “pretensions of Canada” continually, was the question as to whether to canals, bays, and inlets, and the Canadian Britain (and then Canada) had understood and claim that the boundary line should “follow an accepted the concept of the unbroken lisière alleged range of mountains arbitrarily crossing during the approximately sixty years before it and cutting off the heads of bays and inlets, the began to emerge clearly as a major issue – and, ownership of which by the United States had more specifically, the precise point in time when hitherto been unquestionable.”201 On 12 Febru- they gave definite and formal notice that they ary of the same year, Mahlon Pitney, a New Jer- disputed it. As noted above in my comments sey representative, spoke in the House of Rep- on the fifth question, the British-Canadian resentatives regarding the Canadian claim that side attempted to establish that they had made “there is a range of mountains very near to the clear their own point of view about the lisière coast of the mainland, and … a line should be and had protested against what they regarded run there near the coast, which would leave in as unwarranted American occupation of it. British territory a large part of Taku Inlet, and They referred particularly to such matters as a large part of Lynn Canal.”202 Joseph Hunter’s survey of the boundary at the The Americans contended that the evidence Stikine River in 1877, working from “the gen- presented by their adversaries was of little or eral direction of the coast”;194 the British gov- no validity. The point fixed by Hunter on the ernment’s protest in 1887 regarding Schwatka’s Stikine had clearly been accepted by the United

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH States as a temporary boundary only; the al- Ultimately the points in dispute leged “protest” over Schwatka’s reconnaissance between the two Governments were evidently had nothing to do with the coast and disposed of in the Treaty of 1825, coastal waters, and if it had such purpose, this which gave to Russia a narrow strip was “so artfully veiled as to make it entirely of territory upon the coast south of indiscernible”; the Dall-Dawson discussions Mount St. Elias, extending as far were entirely unofficial and were clearly under- south as Portland Channel, upon the 101 stood to be so by both sides; the “protest” over express condition that all the rivers the projected White Pass trail was finally pre- flowing through this Russian terri- sented only as dealing with a rumour which tory should be open to navigation the American government found so “vague by Great Britain, for all purposes and indefinite” that it did not take the matter whatsoever.204 seriously; the British had not put forward their new interpretation of the “existing boundary” They interpreted this, of course, as an admis- at the 1892 conference, and there had been no sion that there was a continuous strip of Rus- real divergence of opinion on the subject. On sian territory through which the rivers flowed the available evidence it was fair to conclude and which would make almost impossible the that the British and Canadians, like everyone existence of British bays and inlets sandwiched else, had accepted the concept of the unbroken between this strip and the Russian islands. lisière for fully sixty years after the convention On 29 February 1892, Liberal Senator Ri- of 1825, and even when contrary theories were chard William Scott, Leader of the Opposition formulated following Cameron’s 1886 report, in the Senate, spoke as follows in reference to they were put forward in such vague, variable, the conference which had just been held in and unofficial fashion that the United States Washington: paid little heed to them. In fact, the first offi- cial notification the American government had There was no dispute as to the that the continuous coastal strip was disputed boundary of Alaska…. It was set- came via Lord Salisbury’s note of 19 July 1898, tled in the treaty of 1825. The line which was evidently communicated to them on was defined, but not marked out 1 August following.203 …. It is purely a question of survey. The Americans were able to cite an impres- The terms of the treaty are not dis- sive array of documents and statements by Brit- puted…. I have never heard of any ish and Canadian officials, some of them quite dispute as to the interpretation to be recent, which indicated not only their accept- given to the treaty, because the treaty ance of the unbroken lisière and their failure to is plain and speaks for itself.205 protest it but also their doubts and uncertain- ties about their own stand. For example, the On 11 February 1898, the following exchange Americans cited a remark by former Canadian took place in the House of Commons: Minister of the Interior David Mills in the House of Commons on 10 March 1879: The Minister of the Interior (Mr. Sifton): I believe our contention is that Skagway and Dyea are really in

5 | The Alaska Boundary Dispute Canadian territory, but as the United On 7 March of the same year, replying to Tup- States have had undisputed posses- per’s question about the choice of the Stikine sion of them for some time past, we River over Lynn Canal for a Yukon railway and are precluded from attempting to anticipated American frustration of the plan, take possession of that territory. Laurier answered in rather confused, or con- Sir Charles Hibbert Tupper: May fusing, fashion: 102 I be excused for saying that I do not think the hon. Minister meant to say But if we had adopted the route “undisputed possession.” by the Lynn Canal, that is to say, The Minister of the Interior: There had chosen to build a railway from have been no protests made. It must Dyea by the Chilkat Pass up the be taken as undisputed when there waters of the Yukon, we would have has been no protest made against the to place the ocean terminus of the occupation of that territory by the railway upon what is now American United States. territory. I agree with the statement Sir Charles Hibbert Tupper: A which has been made on the floor claim, I suppose, was made and ad- of this House, on more than one hered to? occasion, that Dyea, if the treaty is The Minister of the Interior: correctly interpreted, is in Canadian There is nothing in the records to territory…. show that any protest has been made Now I will not recriminate here; – an unfortunate thing for us, but it’s this is not the time nor the occasion a fact….206 for doing so; but so far as I am aware no protest has ever been entered A few days later, replying to a query about against the occupation of Dyea by the reported intention of the American gov- the American authorities; and when ernment to send two companies of troops to the American authorities are in pos- Dyea and Skagway, Prime Minister Laurier session of that strip of territory on remarked: the sea which has Dyea as its har- bour, succeeding the possession of My hon. Friend is aware that, the Russians from time immemorial, although this is disputed territory, it becomes manifest to everybody it has been in the possession of the that at this moment we cannot dis- United States ever since they ac- pute their possession, and that before quired this country from the Russian their possession can be disputed, the Government in 1867, and, so far as question must be determined by a my information goes, I am not aware settlement of the question involved that any protest has ever been raised in the treaty. Under such circum- by any Government against the oc- stances, Dyea was practically in cupation of Dyea and Skagway by American territory – at all events, in the United States….207 possession of the Americans.208

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH These and other such statements resurrected letters to Root and Lodge, respectively, re- by the Americans had a decidedly weakening marking in the one to Lodge: “The plain fact effect on the Canadian case. is that the British have no case whatsoever…. A reasonable summary of the issue would Rather than give up any essential, we should appear to be that the British and Canadians accept a disagreement…. We must not weak- were right, at least for the period after about en on the points that are of serious import- 210 1886, in maintaining that they had raised ques- ance.” Secretary Hay, although trying hard to 103 tions about the lisière and advanced views re- keep the president within bounds,211 also sent garding it contrary to the American view. They communiqués to Henry White and Ambassa- were also right in insisting that they had made dor Choate at the embassy in London to firm known these views to American officialdom. up their resolution on the major issue and to On the other hand, the Americans were right instruct them regarding American procedure. in maintaining that all evidence pointed to On 20 September, Hay wrote a letter to White, general and official British and Canadian -ac hoping that its contents “might indiscreetly ceptance of the unbroken lisière for about sixty percolate through to Balfour.”212 He stated in years after the 1825 treaty and that although categorical terms that the disputed territory they had been made aware of contrary views in the coastal strip was American and that if in recent years, they had not received them in the tribunal failed to decide the question, the formal and official fashion until 1898. On this United States would not submit it to adjudica- particular matter, the Americans had the better tion again but would simply continue to hold argument. the land.213 On 16 October, he sent word to Cho- As the oral arguments proceeded, the ir- ate, in response to the ambassador’s request for reconcilable differences of opinion within the instructions, that if the tribunal granted the tribunal itself became increasingly apparent. It unbroken coastal strip to the United States, the was widely assumed that in all probability the president would accept a decision favourable to three American members would vote solidly in the other side on the Portland Canal.214 favour of the United States’ claims. This would The three American commissioners kept in mean that the questions would be decided by close contact with one another and also main- a four to two majority in favour of the United tained a close liaison with Choate and White at States, or left unsettled by a three to three tie, the embassy so that they all presented a united depending upon the decisions made by Lord American front. Lodge in particular sent fre- Alverstone. He was not only the president of quent communiqués to Roosevelt to keep him the tribunal but also the central figure in the informed about how the case was developing.215 manoeuvrings and negotiations behind the Henry White observed afterwards that on the scenes which were directed mainly towards occasions when it was necessary to convey winning his vote. some delicate intimations to Lord Alverstone President Roosevelt’s crude efforts to dic- about the stand he should take, “it was always tate the course of action the American mem- Cabot who was deputed to do it. He has shown bers of the tribunal should follow, and to brow- great tact and considerable diplomacy through- beat the British government, have already been out.”216 Other accounts, including Lodge’s own, noted.209 He continued in this vein during the do little to dispel the impression that he had an oral arguments. On 3 and 5 October, he wrote active and influential role in behind-the-scenes

5 | The Alaska Boundary Dispute proceedings.217 On 2 October, having become to settle the question of the boundary line, they very worried about the way the oral arguments would undertake to do it themselves.222 were proceeding, he wrote anxiously to White, The foregoing shows the nature and ex- asking him to let Prime Minister Balfour know tent of American pressure with sufficient clar- how serious the situation had become and sug- ity. What about Canadian? From the start it gesting that he try to get Balfour to speak or seemed apparent, at least in the American view, 104 write to Alverstone in the following vein: “We that the Canadians would adhere united and know you are going to decide this question im- stubbornly to their own contention and would partially on the law and facts. We, of course, use all possible means to avoid defeat. Lodge should not think of seeking to influence your wrote to Roosevelt that the Canadians were so opinions on any point. But it seems right that “perfectly stupid” that they could not see that you should know that a failure to reach a de- “a disagreement deprives them of their only cision would be most unfortunate.”218 On the chance to get out of the matter creditably”;223 same day, Root also wrote to White suggesting in his later recollections, he remarked that that he see Balfour. Although he should avoid “the two Canadian representatives would yield saying anything to the prime minister that absolutely nothing on any point” and “there “might be misconstrued as being in the na- was no possibility of any agreement whatever ture of a threat,” Root instructed that “the between the Canadians, who would assent to Foreign Office should know how serious the nothing, and the American commissioners.”224 consequences of disagreement must necessar- The Canadians were “filling the newspapers ily be.”219 White spent the following weekend with articles of the most violent kind, threat- at Balfour’s country estate, and in a long con- ening England with all sorts of things if the de- versation on 4 October, the prime minister cision should go against Canada,” and England said that he attached far more importance to was “so afraid of Canada” that the pressure the agreement of the tribunal than to any other might be effective.225 In a letter to White, Sec- current problem. Two days afterwards, his con- retary Hay remarked, “I see the Canadians are fidential secretary told White that he had seen clamoring that he [i.e., Alverstone] shall decide Alverstone twice.220 not according to the facts, but ‘in view of the On 9 October, the day after the tribunal imperial interests involved.’”226 As the case pro- heard the last of the oral arguments, Lodge ceeded, the American commissioners reported and Balfour had a meeting at White’s home in Alverstone’s complaints to them about the which both spoke of their extreme anxiety over Canadian pressure being exerted upon him.227 the consequences of failure to reach a settle- According to Lodge, Alverstone admitted “that ment.221 Five days later, when it appeared that he was in a very trying and disagreeable pos- the six commissioners were deadlocked, Cho- ition; that the Canadians were putting every ate had an interview with Lord Lansdowne and sort of pressure and making every kind of ap- strongly pressed Roosevelt’s views upon the for- peal to him.”228 eign secretary. He left satisfied that Lansdowne These reports emanated from American and Balfour would emphasize to Alverstone the sources, of course, and it is conceivable that need for a settlement. According to Choate’s they could have been distorted, or exaggerated, account, he and Lansdowne reached the amaz- or inaccurate in some degree. But in the final ing agreement that if the commissioners failed stages, if not before, Canadian pressure from

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH high political authorities became as blatant and Chief Justice has agreed with uninhibited as American. On 7 October, Sifton American Commissioners. Their cabled Laurier from London: decision will be to give us Wales and Pearse Islands, but give Americans I think that Chief Justice intends two islands alongside, namely, Kan- to join Americans deciding in such aghannut [sic] and Sitklan which a way as to defeat us on every point. command entrance to canal and 105 We all think that Chief Justice’s destroy strategic value Wales and intentions are unjustifiable, and Pearse. Remainder of line substan- due to predetermination to avoid tially as contended for by Americans, trouble with United States. Jetté and except that it follows watershed at Aylesworth are much exasperated, White Pass and Chilkoot. Our Com- and considering withdrawing from missioners strongly dissent. Decision Commission.229 likely to be Tuesday next. I regard it as wholly indefensible. What is your Laurier replied: view? Course of discussion between Commissioners has greatly exasper- Our Commissioners must not ated our Commissioners who con- withdraw. If they cannot get our full sider matter as pre-arranged. rights let them put up a bitter fight for our contention on Portland Can- Laurier replied by cable the following day: al, which is beyond doubt: that point must be decided in Canada’s favor. Concession to Americans of Shame Chief Justice and carry that Kanaghannut [sic] and Sitklan can- point. If we are thrown over by Chief not be justified on any consideration Justice, he will give the last blow to of treaty. It is one of those conces- British diplomacy in Canada. He sions which have made British dip- should be plainly told this by our lomacy odious to Canadian people, Commissioners.230 and it will have most lamentable effect. Our Commissioners ought to Any assumption or recognition here of impar- protest in most vigorous terms.231 tiality or judiciality on the part of the Canadian commissioners would be difficult to detect. The The Canadian commissioners did protest, pub- same tendency to identify them with the Can- licly, “in most vigorous terms,” but how much adian point of view, and to instruct them, is Laurier’s message might have had to do with evident in a later exchange between the same their protest is uncertain. two leaders. On 17 October, after the tribunal Lord Alverstone, the key figure in the pro- had made its decisions but before the award ceedings, was under severe and conflicting had been made public, Sifton sent another cable pressures from literally all sides – from the to Laurier: American and Canadian members of the tribu- nal itself, from various external American and Canadian influences including politicians and

5 | The Alaska Boundary Dispute newspapers, and from his own government. In friendship to put to me questions he should the circumstances, it would have been almost not have asked…. I found when I got back to miraculous if he had not reacted to the stress- town that Lord Alverstone had been talking to es and strains in some fashion. Nevertheless, others besides myself, and that his views as to his conduct of the oral arguments appears to the ownership of the heads of inlets were more have been consistently impartial, open-mind- or less known.”233 106 ed, courteous, and capable; anyone reading the Senator Lodge said in his Memoir that Al- lengthy record of the hearings cannot help but verstone told him on the first day of the oral be impressed by the quality of his performance. arguments that “of course the oral arguments The charge that has been most frequently lev- may entirely change my views, but on the cases elled against him is that he permitted himself as presented to us by the agents, Canada has to become wrapped up in the bargaining, man- no case…. You understand that this is entire- oeuvring, and wheeling and dealing that went ly subject to change, which may come from on behind the scenes and that he abandoned his hearing the oral arguments.234 Henry White assigned role as impartial judge to become a sort wrote to Secretary Hay on September 19 that of umpire or conciliator between two quarrel- “Alverstone is getting daily into closer person- ling groups, with the purpose of securing a ne- al touch with Cabot and Root and has already gotiated or compromise agreement rather than spoken quite freely to them…. There seems to rendering his own judicial decision. A leading be unanimity in thinking the Canadians have a Canadian commentator has said that he was good case upon the Portland Canal or channel, revealed “not as the inflexible judge but as the and Alverstone has intimated that he is with adroit and pliable adjuster of difficulties.”232 The us on the main question.”235 On the same day, evidence certainly gives some support to the he wrote a similar message to President Roos- accusation, but, giving full consideration to the evelt.236 The frequent communiqués of Lodge situation in which he found himself, Lord Al- suggest Alverstone’s willingness to negotiate. verstone was more sinned against than sinning. On 24 September, Lodge wrote to Roosevelt On 13 September, shortly before the oral that Alverstone had told him he felt bound to arguments began, Alverstone asked Joseph Pope confidentially if he “thought Canada hold that the line goes round would be satisfied if we could get Wales and the heads of the inlets, which is, if Pearse Islands and a mountain line. I said that course, the main contention. He I feared not. He asked which would they prefer takes very decisively the British view that or an absolute draw – 3 and 3 all round. on the Portland Canal. He wants to I said I thought the latter. Personally I would answer question 7, however, by pick- greatly prefer the former, which I thought was ing out a series of mountains which all we could expect, but I added people were as will reduce the strip running around unreasonable in Canada as elsewhere and that the heads of all the inlets to as narrow the inlets were the question.” This conversation boundaries possible, his idea being, I occurred during a weekend visit, and after- presume, to try to let the Canadians wards Pope wrote of it: “The position, at times, down as easily as possible in this way, was most embarrassing, and Lord Alverstone after having decided against them on very improperly took advantage of old personal the main point.237

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH On 2 October, Lodge reported to White that and obviously contributed a good deal them- Alverstone had told him he was “nearer than selves to the general atmosphere of anxiety and ever to our view of question 7, while he is as uncertainty. By 17 October, the main decisions firm as ever on his main contention of the line had been made, and as noted Sifton sent word going round the head of the inlets which is in- of them to Laurier by cable. On 20 October, the volved in the reply to question 5.”238 award was formally pronounced, the substan- It is understandable that the members of tive part of it being as follows: 107 the tribunal would exchange opinions among themselves, but one gets the impression of a In answer to the 1st question – good deal of loose and uninhibited communi- The Tribunal unanimously cation on Alverstone’s part. This is difficult to agrees that the point of commence- reconcile with his own claim (in a cable to Lau- ment of the line is Cape Muzon. rier on October 13) of complete circumspec- tion and silence in the matter. On 12 October, In answer to the 2nd question – Adam C. Bell of Pictou asked in the House of The Tribunal unanimously Commons in Ottawa for information about a agrees that the Portland Channel is report in the press that a majority of the Al- the channel which runs from about aska commission were about to give judgment 55° 56' north latitude, and passes against the Canadian contention. “It is under- to the north of Pearse and Wales stood that Great Britain’s representative on the Islands. commission, Lord Alverstone, has privately A majority of the Tribunal, that intimated to diplomatic and colonial office -of is to say, Lord Alverstone, Mr. Root, ficials that he is convinced that a stronger case Mr. Lodge, and Mr. Turner, decides is made out by the United States, and that he that the Portland Channel, after intends to give judgment accordingly,” Bell passing to the north of Wales Island, noted.239 A cable was promptly sent to Lon- is the channel between Wales Island don, and Laurier read Alverstone’s reply in the and Sitklan Island, called Tongass Commons on 13 October: “There is not the [Passage]. The Portland Channel slightest foundation for statement attributed to above mentioned is marked through- me…. I have made no communication of any out its length by a dotted red line kind to any diplomatic or colonial officials, or from the point B to the point marked to any person respecting the case. The report is C on the map signed in duplicate by an absolute fabrication.”240 Robert Laird Borden the Members of the Tribunal at the asked on 12 October about a somewhat similar time of signing their decision. indiscretion attributed to Aylesworth, but Lau- rier declined to give any credence to the report In answer to the 3rd question – and apparently no inquiry was made. Neither, A majority of the Tribunal, that apparently, did Aylesworth issue any denial.241 is to say, Lord Alverstone, Mr. Root, The six members of the tribunal carried Mr. Lodge, and Mr. Turner, decides on their deliberations after the oral arguments that the course of the line from the ended on 8 October, in the midst of all this point of commencement to the en- speculation, rumour, pressure, and intrigue, trance to Portland Channel is the

5 | The Alaska Boundary Dispute line marked AB in red on the afore- said map. In essence the award amounted to this. The six commissioners accepted unanimously the point In answer to the 4th question – of commencement that both sides had argued A majority of the Tribunal, that for in Question 1, there being no serious con- is to say, Lord Alverstone, Mr. Root, troversy here. They also accepted unanimously 108 Mr. Lodge, and Mr. Turner, decides the British contention for Portland Channel, that the point on the 56th parallel of through most of its length, and of Pearse and latitude marked D on the aforesaid Wales Islands, in Question 2, this involving a map, and the course which the line rejection by the three American commissioners should follow is drawn from C to D of the American claim. In all other cases, Lord on the aforesaid map. Alverstone joined with the three Americans to outvote the two Canadians. The answers to In answer to the 5th question – Questions 3 and 7 did not give decisive victory A majority of the Tribunal, that to either side and might be termed comprom- is to say, Lord Alverstone, Mr. Root, ises. The answer to what was left of Question 2 Mr. Lodge, and Mr. Turner, decided (the outlet of Portland Channel and the owner- that the answer to the above question ship of Sitklan and Kannaghunut Islands) and is in the affirmative. to Questions 4, 5, and 6 constituted clear-cut American victories. Question 5 having been an- Aylesworth and Jetté were so displeased swered in the affirmative, question 6 with the outcome of the tribunal, especially requires no answer. with what they regarded as the non-judicial division of the four islands at the entrance of In answer to the 7th question – Portland Channel and selection of the moun- A majority of the Tribunal, that tain line, that they refused to sign the award. is to say, Lord Alverstone, Mr. Root, They also wrote strongly worded dissenting Mr. Lodge, and Mr. Turner, decides opinions and issued public statements justify- that the mountains marked S on the ing their stand. Alverstone and the American aforesaid map are the mountains commissioners also wrote their own opinions: referred to as situated parallel to the Alverstone individually, the Americans as a coast on that part of the coast where group. such mountains marked S are situ- Aylesworth was bitterly critical of Lord Al- ated, and that between the points verstone for his abandonment of his earlier view marked P (mountain marked S, 8, that the British contention regarding Portland 000) on the north, and the point Channel was entirely correct and the four dis- marked T (mountain marked S, 7, puted islands should thus all be Canadian, and 7950), in the absence of further sur- for his acceptance of the American demand that vey, the evidence is not sufficient to Tongass Passage should be named the entrance enable to Tribunal to say which are of Portland Channel, thus making Sitklan and the mountains parallel to the coast Kannaghunut Islands American territory. This, within the meaning of the Treaty.242 Aylesworth said, “is no decision upon judicial

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH principles; it is a mere compromise dividing the essentially the line of reasoning that Senator field between two contestants…. nothing less Turner had indicated in his remarks before the than a grotesque travesty of justice.”243 He dis- tribunal.246 In accounting for their acceptance puted also the majority decisions on Questions of the American argument on the fifth ques- 5, 6, and 7. In his comments, he adhered rigidly tion, that is, that the 1825 treaty conceded a to the Canadian claims that (1) the 1825 con- continuous Russian mainland strip running vention had not been designed to give Russia a around the heads of the inlets, they did little 109 continuous strip of coast on the mainland, (2) more than reiterate the main points made by the strip should be measured from the general the American side during the case, with em- direction of the mainland coast and thus would phasis upon the factors of original understand- be broken by the inlets, and (3) the mountain ing and long, unchallenged possession.247 line should run along the tops of the mountains The two opinions written by Lord Alver- nearest the sea. stone were also concerned with the second Jetté’s opinion consisted largely of lengthy and fifth questions. He reached the same con- and rather pointless repetition of the 1825 clusions as the American commissioners, but treaty, the convention of 24 January 1903, the his written comments suggest a different line arguments of the two sides, and the award. In of thought in each case. His approach to the essence, he took essentially the same stand on second question is in fact difficult to detect if the specific questions as Aylesworth. Regarding one has only his written opinion for guidance. the majority decision to divide the four islands, For the fifth question, it is clear that while he he found that “it was totally unsupported either concurred with the Americans in his empha- by argument or authority, and was, more- sis upon the importance of the original intent over, illogical.”244 On Question 7, he observed of the 1825 treaty, he was much less impressed correctly that the decision of the majority to than they were with the significance of such choose certain mountains was adverse to the things as subsequent actions and mapmakers’ American contention that the treaty called for interpretations.248 a continuous chain of mountains and that no Alverstone’s reversal on Portland Chan- such chain was identifiable. He could not ac- nel and the four islands, and his questionable cept the arbitrary choice of a mountain line behaviour in connection with this change, which “although it does not concede all the ter- provoked Canadian resentment more than ritory they claimed to the United States, never- anything else and precipitated the bitter after- theless deprives Canada of the greater part of math that followed. During the course of the that to which she was entitled.”245 oral arguments, he had made no secret of his The American commissioners wrote joint conviction that the British contention regard- opinions on the second and fifth questions. On ing Portland Channel was the correct one and Question 2, they explained their rejection of thus the four islands should be Canadian; his both the American contention that Portland memorandum on the subject, which he ap- Channel lay south of all four disputed islands parently read to the other commissioners on and the British that it lay north of them and 12 October, 249 embodied this view. Yet, when their opting for Tongass Passage as the “true en- the vote was taken, he joined with the three trance” of Portland Channel so that the islands Americans to identify Tongass Passage as the were divided. Their explanation followed entrance of Portland Channel, thus conceding

5 | The Alaska Boundary Dispute the two small, outer islands to the United States. Sifton in which he defended the decisions he The usual explanation for this odd turnabout is had made. The replies he received showed their that the American commissioners, finding the rejection of his attempts at self-justification, American argument on Portland Channel un- and when Laurier expressed frankly his view tenable and Alverstone stubbornly determined that the decision on Portland Channel and the to deny them as wide a lisière as they wanted, two islands could not be supported on judi- 110 demanded the two outer islands as compensa- cial grounds, Alverstone wrote back, “I desire tion, and Alverstone’s surrender on this point to state most emphatically that the decisions, gave the resulting compromise arrangement. whether they were right or wrong, were judi- He wrote a memorandum afterwards in which cial and founded on no other considerations. he said that one of the American commission- I alone am responsible for them.”252 He also ers told him that if the islands were not divided, commented publicly on the matter in a speech they would not sign the award, and he defended at a dinner in London. “If when any kind of his action on grounds that it was necessary and arbitration is set up, they don’t want a decision the two tiny islands were of no value anyway.250 based on the law and the evidence,” he pro- Alverstone was subjected to severe public claimed, “they must not put a British judge on criticism by the two Canadian commissioners the commission.”253 In his memoirs, Alverstone and by many senior Canadian officials, includ- commented in a general way upon the case and ing Sifton and Laurier, for his compromises on still defended his impartiality: the four islands and the mountain line. Ayles- worth and Jetté took the extraordinary step of I came to the conclusion that issuing a public statement criticizing the award I could not support the main con- and justifying their refusal to sign it, in which tention of Canada as regarded the they said: boundary, and acting purely in a judicial capacity, I was under the We do not consider the finding painful necessity of differing from of the tribunal as to the islands at the my two Canadian colleagues…. I entrance of Portland Channel or as only came to this decision with the to the mountain line a judicial one, greatest reluctance, and nothing but and we have therefore declined to be a sense of my duty to my position in- parties to the award…. We have been fluenced me. I mention this because compelled to witness the sacrifice of my conduct in giving this decision the interests of Canada, powerless was the subject of violent and un- to prevent it, though satisfied that just criticism on the part of some the course the majority determined Canadians.254 to pursue in respect to the matters above specially referred to, ignored In spite of Alverstone’s protest, it seems beyond the just rights of Canada.251 doubt that the decision on Portland Channel and the islands was a last-minute compromise Hurt and angered by the storm of criticism that he made in the face of severe pressure from that descended upon him, in which the Can- the American commissioners and perhaps from adian press enthusiastically joined, Alverstone his own government. A few years afterwards, wrote letters to Jetté, Aylesworth, Laurier, and

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Canadian lawyer John Skriving Ewart (a tire- This brings up again the provocative ques- less advocate for Canadian independence), in tion posed by Senator Turner during the oral a viciously worded article which according to argument as to whether Captain Vancouver, one leading commentator has been considered when naming Portland Channel, considered “a classic work of legal reconstruction,”255 put its opening to be the passage north of Kan- forward a strong argument that Alverstone’s naghunut and Sitklan Islands, out of which opinion espousing a division of the islands was he sailed, or Tongass Passage between Sitklan 111 in reality his earlier opinion advocating the and Wales Islands, which he saw but did not award of all four to Canada, but slightly and sail through when leaving Portland Channel.260 illogically revised and generally inconsistent The question appeared to embarrass both Sir with the new conclusion. Ewart’s basic argu- Robert Finlay and Sir Edward Carson, who ment ran thus: “With the change of one word had obvious difficulty finding a satisfactory in one clause; the omission of two words in an- answer. Turner suggested that although it was other clause; and the interjection of one whole quite clear Vancouver had gone out through clause, this second judgment of Lord Alverstone the northern channel, there was no conclusive is really his first judgment.”256 In spite of the evidence as to which route he had taken on vitriolic and polemical style of the article, Ew- his return trip, and it was on the return trip art’s argument, which he set forth in minute that the name was given. He had not chosen detail, certainly had a ring of authenticity. It the northern channel on his outward trip be- was shown to be essentially sound in 1914 when cause it was the better one but simply because Frederick Coate Wade, one of the Canadian it was the direction he wanted to take, and in counsels in the case, published (for the first fact Tongass Passage was broader, clearer, and time according to his own claim) Alverstone’s more navigable than the other one. The element earlier opinion, which conformed essentially of time might also have favoured his being op- to the reconstruction Ewart had made.257 Re- posite Tongass Passage when the channel was calling a comment in Aylesworth’s opinion,258 identified. Turner was thus able to cast at least Ewart also charged that in identifying Portland a measure of doubt upon the British contention Channel in his second judgment, Alverstone for the entrance of Portland Channel, and in had at first written, “The channel which runs to the final decision, of course, the majority opted the north of … the islands of Sitklan and Kan- for Tongass Passage. naghunut and issues into the Pacific between The matter is important because the choice Wales and Sitklan Islands.” Subsequently, he of Tongass Passage gave Aylesworth his specif- was permitted to eliminate the words “Sitklan ic reason, according to his own statement, for and Kannaghunut” so that his award con- refusing to sign the award. In his dissenting formed with his second decision and with geo- opinion he wrote, “It is a line of boundary graphical possibility.259 To reiterate, the opinion which was never so much as suggested in the Alverstone finally gave was a hasty last-minute written Case of the United States, or by Coun- compromise, made in the face of severe pres- sel, during the oral argument before us. No in- sure. There remains the possibility, of course, telligible reason for selecting it has been given that it also represented a genuine change of in my hearing. No Memorandum in support view on his part, and thus it could have been of it has been presented by any member of the based upon judicial considerations. Tribunal.” In a technical way he may have been

5 | The Alaska Boundary Dispute right, since the suggestion was put forward by never claimed, and in favor of which American a member of the Tribunal rather than of Coun- counsel had not advanced a single argument…. sel, and orally rather than on paper. Other- Division was never thought of or suggested wise, the evidence is against him. Further on, by anybody until the compromise was agreed he continued, “The sole question presented to to.”264 After remarking elsewhere that “until us for decision on this branch of the case was that moment there had not been a suggestion 112 whether the Portland Channel of the Treaty lay that the line could possibly run anywhere but north of the four islands or south of the four, north or south of all four islands,” Ewart adds and until today it has been uniformly admitted the footnote that “Mr. Turner’s interpolations by everybody that all four of these islands be- at pages 77 to 79 do not affect the correctness longed, all together, either to Great Britain or to of this assertion.” Thus, having discovered the the United States.” evidence that destroyed the point he was try- Obviously both parts of this statement are ing to establish, he blithely chose to ignore it.265 incorrect. This was not the question presented Why the Canadians at the tribunal, especially to the tribunal, as a glance at the treaty will Aylesworth, failed to give due consideration to show. The precise wording of the question was this evidence in their savage criticism of this simply, “What channel is the Portland Chan- part of the award is a question. Their failure nel?” Aylesworth’s concept of the possible al- to do so undoubtedly had an unfortunate ef- ternative answers had obviously not been “uni- fect, because it gave rise to a popular Canadian formly admitted by everybody.” It is difficult to folk-tradition about the division of the islands understand how he could have made the above which is not entirely warranted by the facts. statements, because he was present and made In time, it became clear that the import- comments on both occasions when Turner ance both sides then ascribed to Sitklan and raised the issue.261 Regrettably, Aylesworth’s Kannaghunut Islands was wholly imaginary. view of this aspect of the case has been widely The two islands are practically valueless, stra- and uncritically accepted by many Canadian tegically and otherwise. In his opinion, Ayles- writers. James White, for example, wrote in his worth described them as being “of the utmost Boundary Disputes and Treaties that “there was consequence, for they lie directly opposite no evidence presented by either nation, nor can to, and command the entrance to, the very any be found, that would indicate that Port- important harbour of Port Simpson, British land Channel was ever considered as passing Columbia,”266 which was then planned as the between Sitklan and Wales Islands, as decided western terminus of the Grand Trunk Pacific by the tribunal.”262 Even Sir Joseph Pope, who Railway. Others took a similar view. As events was at the tribunal, took no note of Turner’s transpired, however, the railway was diverted suggestion: “At no stage of the proceedings was to Prince Rupert, the United States did not for- such a claim ever put forward by the Amer- tify the islands, and practically nothing hap- ican counsel. Nobody on either side ever sug- pened to disturb their customary tranquility, gested such a thing as a division of these four isolation, and insignificance. As a matter of islands.”263 Ewart in his categorical fashion stat- fact, word had been sent from Washington that ed that Alverstone agreed to locate the channel the British contention as to Portland Channel entrance “at a place for which there was not a could be conceded,267 and it would thus appear tittle of evidence, which the Americans had that in demanding the two outer islands the

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH American commissioners were acting on their tops of these same mountains.269 As Sir Robert own. All told, the furor over Sitklan and Kan- Finlay said in his argument, “You start from naghunut constitutes the silliest aspect of the the margin of the sea, you go up to the summit entire case, and it is debatable who behaved the of the mountains, and there you have got your more discreditably in the affair: the American lisière.”270 commissioners for insisting upon having them Considering all the issues disputed during or the Canadian commissioners for raising the case, about the most certain thing is that 113 such an outcry over not getting them. the convention of 1825 was intended to give The objections of the Canadian commis- Russia an unbroken strip of mainland coast sioners to the majority’s decision fixing the and that, consequently, Question 5 as put to mountain line were much more solidly ground- the tribunal required a positive answer. It is ed, and it is unfortunate that they did not con- here, regrettably, that the performance of the centrate more exclusively upon this aspect of two Canadian commissioners became most the award. The selection of particular moun- questionable. Virtually all other matters before tain peaks was necessarily quite arbitrary, and the tribunal were genuine issues that required any number of alternatives could easily have settlement, including the beginning point of been found. If the majority had stated frank- the boundary line, the identity of Portland ly that in the absence of adequate information Channel, the course of the line from the begin- their aim was simply to make as equitable and ning point to the entrance of Portland Channel just a placing of the line as was possible in the and from the head of Portland Channel to the circumstances, their decision might have been 56th parallel, the existence and location of the less objectionable. Their categorical asser- mountain range in the treaty, and the breadth tion that the mountains they chose were “the and exact delimitation of the lisière. Unfortu- mountains referred to as situated parallel to nately, most of them did not lend themselves the coast”268 was sheer effrontery, and the fact to settlement in strictly judicial terms. But the that they could not complete their own line matter of the unbroken coastal strip was not in suggests strongly that the inadequacy of their reality a legitimate issue, and it would probably knowledge about the part they could not lo- have been better if it had not been permitted cate extended in reality to the part they did lo- to assume the status of one. The background cate. The line they chose made an almost equal of the case shows clearly that President Roos- division of the disputed territory between the evelt was right in his contention that this was a Canadian and the American claims, but there trumped-up claim on Canada’s part and if (in would appear to be strong grounds for holding line with his view that it was not justiciable) he that a just division would have given Canada had refused to let it go before the tribunal, he considerably more. Granting that the strip was would have given it no more than the treatment intended to be unbroken, it is also clear that it it deserved. This in no way excuses his behav- was intended to be narrow. The best evidence iour after he had agreed to let it become part of of this is that when the Russians objected to the the arbitration, but that is another matter. British proposal for a boundary following the The genesis of the “Coast Doctrine” upon base of the coast mountains because it might which Canada relied is in itself surprising. In go right down to water’s edge, they themselves any such situation, a General Cameron is like- proposed as a corrective a line following the ly to make his appearance, bring forth an idea

5 | The Alaska Boundary Dispute that seems to fit the needs of the moment, and States, an unbroken strip of main- give it the aura of substance and legitimacy. land coast from the mouth of Port- What is truly remarkable, however, is the man- land Channel to the 141st meridian. ner in which this peculiar notion permeated When the treaty-makers of 1825 and infected thought, judgment, and policy in spoke of “sinuosities of the coast” the higher echelons of Canadian officialdom they meant just that; and when they 114 and government, from George Mercer Daw- spoke of the “coast” they meant the son through to Clifford Sifton, until it became physical coast and not the abstract, official in every sense of the word. Equally re- artificial construct of the Canadian markable is that, although it was trumpeted claim…. loudly in public by leading figures, in private To imply, as the Canadian claim many of them were willing to concede that it did, that the map-makers had for over lacked validity. There seems to be little doubt sixty years misinterpreted the Treaty that Laurier and Joseph Pope, among others, of 1825 without being corrected by realized that the Canadian claim to the inlets anyone; that Russia had bargained was invalid in a legal sense and that respon- so tenaciously for the longest pos- sible British officials took the same view.271 The sible mainland strip only to leave in invalidity of the Canadian contention has also the hands of Britain every desirable been generally recognized by qualified Can- harbour on that coast and to content adian authorities who have since written on itself with the useless promontories; the subject, although some seem to have made that the Hudson’s Bay Company this admission more or less as an afterthought, expedition of 1834 was prepared following the familiar complaints about how laboriously to work its way up the badly Canada was treated. It is also worth re- Stikine in open boats lowered from iterating, while speaking of aspects of the case the Dryad when the ship could have which seem incomprehensible today, that the sailed freely up any inlet into British American W. H. Dall had pointed unerringly territory; that the treaty would make to some of the major flaws in Cameron’s theory a special point of conceding to Brit- in his discussions with Dawson in 1888, and the ain the right to navigate the rivers details of these discussions were well known to without mentioning the “territorial” the Canadian government. If more attention inlets – all this deserves only one de- had been paid to his arguments, a good deal of scription: it was absurd.272 unnecessary trouble might have been avoided. H. George Classen, in his study of the Al- Yet this is the interpretation of the treaty that aska boundary dispute, makes the following the two Canadian commissioners, “sitting penetrating comment on the issue of the coast- judicially, and sworn to so determine and an- al strip, and in so doing shows effectively the swer the questions submitted,”273 and with all foolishness of the Canadian claim: the ascertainable facts before them, decided should be validated when they refused to join There is no doubt whatever that the majority in answering “Yes” to Question 5 the United States was right when it – the most important issue before the tribunal. claimed that the treaty had conced- Is it not in order to ask, then, how impartial, ed to Russia, and thus to the United

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH in actual fact, were our “impartial jurists of re- and evidence. This, in turn, might make inevit- pute”? Or, if they meant to be impartial, how able certain elements of concession and com- reputable was their judgment? promise. The only alternative was to hand the The same question may be pursued regard- dispute back to the respective governments for ing their overall performance in the case and settlement at a political or diplomatic level. The the award. The popular Canadian tradition has tribunal could hardly have been blamed if it been that the American commissioners, under had done this, and it may well be censurable in 115 instructions from President Roosevelt, upheld some respects for not having done so. Looking the American claims with utmost rigidity at the award as given, however, the American from beginning to end, that Lord Alverstone commissioners in the end did concede a good thought only of a settlement and thus had no deal, either by conviction or by compromise, firm principles or views to uphold, and that the on the issues concerning the identity of Port- Canadian commissioners were the only ones to land Channel (Question 2), the line to Port- look at the case with firmly judicial and impar- land Channel (Question 3), the existence of a tial eyes. The truth of the matter is consider- mountain line (Question 7), and the ten mar- ably different. Alverstone was undoubtedly the ine leagues and the width of the coastal strip most willing to compromise, but he also had (Questions 5 and 7). On the other hand, the the soundest and most impartial judicial ap- Canadian commissioners yielded not one jot or preciation of the case, and the final award was title of the Canadian claims, but rather clung not greatly at variance with his frequently ex- inflexibly to the Canadian case throughout, as pressed opinion as to what it ought to be. Roos- if they were impervious to argument, evidence, evelt had told the American commissioners or reason. Their refusal to compromise on judi- that there should be no yielding on the princi- cial principle does them credit, insofar as this ple of the lisière, but this was a view they should really accounts for their stand, but otherwise have taken on purely judicial grounds anyway. their stiff-necked, narrow-minded identifica- Otherwise, even though stubbornly pro-Amer- tion of a fair judgment with Canadian interests ican in their attitude, they seem to have taken says little for their impartiality, or judicial per- the posture that the remaining issues were ception, or both. open for adjudication. There was plenty of irresponsible and Of all the questions in dispute, only two threatening talk on both sides of the 49th par- – the identity of the upper part of Portland allel during the affair, in both official and unof- Channel and the existence of the unbroken ficial circles. Here again the Canadian tradition lisière – could be answered judicially and at the of self-righteousness is somewhat at variance same time decisively. As the oral arguments with the facts. American intransigence, greed, clearly demonstrated, information was so im- belligerence, and bluff, insofar as they made precise and incomplete that clear-cut judicial themselves evident, were on the whole pretty answers were impossible to the other questions. well matched by Canadian, the main difference That being the case, the only approach the tri- being that the United States was in a position bunal could take to reach a decision, if it was to to carry out its threats and Canada was not. make one, was to search for the best answers This feature, real and dangerous at the time, that could be found in the existing circum- was often discounted or ignored by angry Can- stances, paying due heed to all relevant facts adians. For example, Seymour Eugene Gourley

5 | The Alaska Boundary Dispute of Colchester proclaimed in the House of Com- treaty-making power, which would mons in February 1902: enable us to dispose of our own af- fairs…. But we have no such power, What we want now is a full dis- our hands are tied to a large extent cussion in this House so that this owing to the fact of our connection – ministry will know that the time has which has its benefits, but which has 116 come when if they sacrifice one foot also its disadvantages…. of Canada soil we will hang them as It is important that we should high as Haman. If it is necessary to ask the British parliament for more fight the Yankees we will fight them extensive power, so that if ever we within twenty-four hours, and af- have to deal with matters of a similar ter six months we will capture their nature again we shall deal with them capital and annex their country to in our own way, in our own fashion, Canada.274 according to the best light that we have.276 When news of the award came, the same speaker lectured the House again in the same It was Henri Bourassa, however, who had been vein and had a little help: connected with the joint high commission in 1898 and had obviously made himself familiar We are not a weak colony. Six with the historical background of the dispute, millions of free people would beat who in an able summary reduced the case to the United States single-handed in its most basic features and set them before the the contest…. House: Mr. [Samuel] Hughes (Victoria): We beat them in 1812, when they I think no other conclusion can were relatively forty times as popu- be drawn by any unbiased mind than lous as they are now. that it was clearly the intention of the Mr. Gourley: Of course. And we parties that the strip of land should could do it again.275 be uninterrupted, and that Great Britain would not have any right Perhaps, in retrospect, we should thank benefi- whatever to the inlets that penetrated cent providence for the much-maligned Lord the coast…. Alverstone. Much has been said about the Prime Minister Laurier, although express- importance of these two little islands, ing disappointment in the outcome of the case, Kannaghunut and Sitklan. As far as was more concerned about the root problem of their intrinsic value is concerned, I Canada’s relationship with the Mother Coun- think every body will agree that they try and its need for a greater measure of in- are of no value whatever. To speak of dependence in foreign affairs: their strategic value is to my mind going a little beyond the mark.277 I have often regretted also that we have not in our own hands the

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH Regarding the substance of the entire award, concession on the mainland that led to all the Canada might fairly have received somewhat trouble. Although the two were not logically more – perhaps the two tiny islands, certainly related and should not have been associated, it a larger share of the disputed lisière, possibly is clear that Britain, anxious to gain the one, (because of what has been called a slip on Lord was not greatly disturbed about conceding the Alverstone’s part) a little more territory in the other, and thus let Russia make off with a large Chilkat River region. Allegedly, in drawing strip on the mainland to which she had no 117 the boundary here, Alverstone overlooked the more claim than Britain had. If justice had been modus vivendi line of 1899, and the American done, Russia would have received no compen- commissioners conveniently neglected to draw sation whatever for abandoning her extreme his attention to it.278 Themodus vivendi line maritime claims, and the Alaskan coast would was clearly understood to be provisional only, have been a separate issue. Here the pretensions however, and since the commissioners were were about equal: Britain had no establish- attempting to place the line along mountain ments within about two hundred miles on the tips, it is unlikely that Alverstone’s oversight mainland; Russia had only one real post on the (if it was that) would have made any difference. adjacent islands; and neither had established In any case, all these additions would not have any permanent presence whatever in what be- given Canada what she really wanted: an out- came the disputed lisière. So far as the coast let or outlets to salt water. Canada’s counsel at was concerned, both were starting practically the tribunal, especially Sir Robert Finlay and from nothing. The British concession was par- Sir Edward Carson, did a magnificent job of ticularly deplorable because, in spite of Russian presenting her case for the inlets, untenable arguments to the contrary, British ownership of as it was, in the most favourable light. It was the mainland coast would not in itself become a hopeless task. The only way she might have ruinous to Russia’s position on the islands, even gained the desired access to tidal water would if Russia had been clearly entitled to them. On have been through a diplomatic arrangement the other hand, Russia’s deliberate purpose in of the sort that failed to materialize in 1899. It seeking a coastal strip was to bar forever Brit- might have been much better if she had sought, ish access to salt water in the region, frustrat- through negotiation, a reasonable modification ing British commerce and enterprise. Britain’s of an existing but disadvantageous situation, abandonment of the issue becomes even more instead of pinning her hopes stubbornly on a incomprehensible given that it was in a favour- spurious legal case. able strategic position to make larger demands As a final comment, it is obvious now, and in the region – and to back them up with naval should have been obvious then, that Canada’s force if the need arose. Ironically, if the HBC real grievance could not justly be laid at the had had the initiative and foresight to establish door of the United States for what had hap- even a single post on the upper Stikine River pened since 1867, but rather concerned what between 1821 and 1825, the entire outcome had happened long before. In other words, the might have been changed. No doubt the dis- real fly in the ointment was the treaty of 1825. patch of a British ship or two, from the many Britain, interested mainly in securing Russia’s left idle after the end of the Napoleonic Wars, withdrawal from her extravagant pretensions would have had an even more marked effect. in North Pacific waters, made the unnecessary Even without any such devious or threatening

5 | The Alaska Boundary Dispute devices (which would not, of course, have been in all probability have brought about a result in any way exceptional in the diplomacy of the more favourable to Britain – and ultimately to time), a British diplomatic stance as firm and Canada. Here, in truth, was the real nucleus of uncompromising as that of the Russians would all the trouble over the Alaska boundary.279

118

A HISTORICAL AND LEGAL STUDY OF SOVEREIGNTY IN THE CANADIAN NORTH